R v Medich (No 8) - [2016] NSWSC 1713

Supreme Court

New South Wales

Medium Neutral Citation: R v Medich (No 8) [2016] NSWSC 1713
Hearing dates: 18 October 2016
Date of orders: 09 December 2016
Decision date: 09 December 2016
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [48];[52];[56];[59]

Catchwords:
CRIMINAL LAW – Evidence – Where the Crown sought to lead evidence of the relationship between the accused and the deceased – Where some of the evidence was constituted by representations of the deceased – Whether evidence admissible – Evidence admitted

CRIMINAL LAW – Evidence – Where the Crown sought to lead evidence of the relationship between the accused and the deceased – Where Crown relied upon statements made by the deceased to his wife – Evidence not admitted

CRIMINAL LAW – Evidence – Where the Crown sought to lead evidence of the relationship between the accused and the deceased – Where Crown relied upon statements made by the deceased to a journalist shortly before his death – Whether the statement of the deceased were statements of his feelings, intentions, knowledge and state of mind – Where statements amounted to an expression of an opinion by the deceased as to the intentions of the accused – Evidence not relevant to any fact in issue – Evidence excluded
CRIMINAL LAW – Evidence – Where the Crown sought to lead evidence of the relationship between the accused and the principal Crown witness – Where evidence included evidence of the witness and others threatening people on behalf of the accused – Evidence of threats unfairly prejudicial to the accused and excluded – Balance of the evidence admitted
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Hillier (2004) 154 ACTR 46; [2004] ACTSC 81
R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377
Ratten v The Queen [1972] AC 378
Seven Network Limited v News Limited (No 8) [2005] FCA 1348
Standen v R [2015] NSWCCA 211
Wilson v The Queen (1970) 123 CLR 334; [1970] ALR 687
Category: Principal judgment
Parties: Regina – Crown
Ronald Edward Medich – Accused
Representation:
Counsel:
G O’Rourke SC and S Harris – Crown
WC Terracini SC, M Curry and S Schaudin – Accused
Solicitors:
Director of Public Prosecutions NSW – Crown
Colin Daley Quinn Solicitors – Accused

File Number(s): 2010/356916
Publication restriction: Nil

Judgment

INTRODUCTION

Ronald Edward Medich (“the accused”) has pleaded not guilty to an indictment alleging:

the murder of Michael McGurk (“the deceased”), contrary to 18(1)(a) of the Crimes Act 1900 (NSW) (“count 1”); and

the intimidation of Kimberly McGurk (the deceased’s wife), contrary to s. 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“count 2”).

The trial is listed to commence on 30 January 2017 with an estimate of three to four months.
In respect of count 1 it is the Crown case that in March 2009, the accused recruited Lucky Gattellari (“Gattellari”) to arrange the murder of the deceased, and further that he financed such arrangement. It will be alleged by the Crown that the accused’s motive for the murder was to resolve an ongoing dispute with the deceased. It will be further alleged that the murder was a means of the accused “saving face”, in circumstances where he believed that the deceased had deceived and swindled him of millions of dollars.
In respect of count 2 it is the Crown case that at about the same time (i.e. March 2009) the accused also recruited Gattellari to intimidate the deceased’s wife, Kimberly McGurk, in order that she pay the accused monies that he believed he was owed by the deceased. The act of intimidation was originally intended to occur a short time after the death of the deceased. However, it was delayed due to the intense scrutiny surrounding the accused and Gattellari following the deceased’s murder. The plan was reinstated in 2010 when, on the Crown case, it appeared obvious to the accused that the deceased’s wife proposed to continue litigation against him which had been commenced by the deceased. On the Crown case, Gattellari enlisted persons to carry out the intimidation of the deceased’s wife, and the accused provided the funds for that purpose.
There is no issue that the deceased was murdered, nor is there any issue that the deceased’s wife was the subject of intimidation. The fundamental issue in respect of both counts in the indictment is the same, namely whether the accused arranged for the murder of the deceased, and the intimidation of the deceased’s wife, by directing, encouraging and financing such matters.

THE PRESENT ISSUES

The Crown seeks to lead evidence of the relationship between the accused and the deceased, and the relationship between the accused and Gattellari. The accused objects to the admission of that evidence. This judgment deals with those issues.

THE CROWN CASE

In order for the present issues to be placed into their proper context, it is necessary for me to set out the Crown Case Statement which is in the following terms:

1. At about 6.25pm 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 and alerted family members who performed CPR upon the deceased and this was continued by uniformed police who had arrived at the scene. A few minutes later ambulance personnel arrived and also attempted to revive the deceased but it became apparent he had died.
5. The accused, Ronald Edward Medich, is charged with murdering Michael Loch McGurk on 3 September 2009 and later intimidating the deceased's wife, Kimberley McGurk on 8 August 2010.
6. The accused participated in a joint criminal enterprise with other co offenders to murder the deceased and intimidate the deceased's wife.
7. The accused, who was a prominent property developer and businessman developed a business relationship with the deceased in around 2006/2007 and they jointly became involved in many business ventures.
8. During late 2008 this relationship soured until early 2009 when the relationship was completely acrimonious and by early to mid-March 2009 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.
9. At the time of the murder most of these matters were still unresolved, ongoing and were costing each party a significant amount of money.
10. It is the Crown case that due to the extreme animosity between the two men, the amount of money that the deceased was claiming the accused owed him, the amount of money the accused believed the deceased owed him and the perceived embarrassment, anger and frustration this caused the accused culminated in the accused directing his close friend and business associate,
Fortunato 'Lucky' Gattellari to organise the murder of the deceased in or around February/March 2009 and the accused financing the murder at separate occasions throughout 2009 and then financing the intimidation of the deceased's wife in 2010.
The significant people involved in the murder of the deceased and the intimidation of Kimberley McGurk.
11. The deceased was a 44 year old married man and the father of four children. He was the Director of a company, Bentley Smythe Pty Ltd, 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.
12. Fortunato or 'Lucky' Gattellari ('Gattellari) has known the accused for many years and had a very close business and personal relationship with him. For several years the accused invested significant amounts of money into Gattellari's business ideas or ventures, for example a winery, the Macquarie Function Centre and what was known as the Boomerang Funeral Fund.
13. Later the accused became involved with Gattellari in a business model of buying up Electrical companies in financial difficulty - indeed the accused invested between $14-16 million dollars into this scheme during 2008 - 2010.
14. 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 initially transferred into the Riv Group owned by the accused who was the director and share-holder of this company. Gattellari's role was to oversee the running of these businesses on behalf of the Riv Group.
15. Gattellari was also involved in collecting debts owed to the accused.
16. The accused and Gattellari also had very close personal relationship - constantly contacting each other over the phone and seeing each other on a near daily basis.
17. It was Gattellari to whom the accused turned to (and trusted) to organise the murder of his commercial foe. Indeed their relationship has been described by those close as being 'joined at the hip' and 'speaking with one voice.'
18. On 31 July 2012 Gattellari pleaded guilty in the Central Local Court to the murder of the deceased on the basis of being an accessory before the fact and was committed for sentence to the Supreme Court on 7 September 2012 where he again pleaded guilty and signed an undertaking to give evidence against his co accused.
19. On 10 May 2013 Gattellari was sentenced to a non-parole period of seven (7) years and six (6) months imprisonment with an additional term of two (2) years and six (6) months imprisonment after receiving a 60% discount for his plea, past and future assistance.
20. 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.
21. On 16 August 2012 Kaminic pleaded guilty to accessory after the fact to murder in the Central Local Court and was committed for sentence to the Supreme Court on 7 September 2012. Kaminic signed an undertaking to assist on 11 February 2012 and was indemnified by the Attorney General on 5 July 2012 in regard to the offences of murder, accessory before the fact to murder and intimidation of Mrs McGurk.
22. On 10 May 2013 after receiving a 50% discount for his plea, past and future assistance, Kaminic was sentenced to a non parole period of two (2) years and six (6) months imprisonment with an additional term of two (2) years imprisonment.
23. Haissam Safetli - in around 2001 Safetli met Kaminic in Kaminic's capacity as a debt collector. They stayed in irregular contact and became friends. Kaminic introduced Safetli to Gattellari. He was a friend and associate of Kaminic and when initially introduced (in around late 2008) to Gattellari commenced doing surveillance and debt collecting work for him to obtain some extra money.
24. Safetli was also involved in the murder of the deceased - indeed he drove to the deceased's home on the 3 September 2009 in possession of the modified rifle that was used to murder the deceased and waited for the deceased to return home. Safetli was also involved in the intimidation of Kimberley McGurk in August 2010 and received financial payment for his involvement in both offences.
25. On 2 July 2013 Safetli pleaded guilty to the murder of Michael McGurk on 3 September 2009 and acknowledged his guilt in relation to the intimidation of Mrs McGurk on 8 August 2010 and on 9 August 2013 after receiving a 60% discount for his plea and past and future assistance Safetli was sentenced to fixed term of 6 months imprisonment for the intimidation charge to date from 13 October 2010 expiring 12 April 2011. For the murder charge he was sentenced to a non parole period of 6 years and 6 months to date from 13 April 2011 expiring on 12 October 2017 with an additional term of 2 years and 6 months.
26. 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. He was present with Safetli when the deceased was murdered and pleaded guilty to being an Accessory after the fact to the murder of the deceased and was later sentenced.
The Relationship between the deceased and the accused and the motives for the Murder:
27. Also see the signed section 191 agreed fact document concerning the civil disputes which is attached to the Crown case statement and marked annexure ‘A’.
28. The accused met the deceased in approximately 2005 through mutual acquaintances.
29. Between June 2007 and June 2008, the accused and the deceased enjoyed a close business relationship and were involved in many financial ventures, including:
(i) The Amazing Loan venture: In June 2007 the accused approached the deceased to assist him in relation to a financial agreement he had entered into with a company called Amazing Loans ("Amazing Loans") - which lent money to borrowers on a short term basis and was headed up by a man called Paul Mathieson;
(ii) Purchasing Properties: Around October 2007, the accused and the deceased agreed to both enter into a development opportunity regarding two properties at Mowbray and Gerroa ("Mowbray/Gerroa");
(iii) Repayment of monies and assignment of mortgages: Around Christmas 2007, the accused recruited the deceased to assist him in finalizing a loan agreement the accused had entered into with the purchasers of a property in Point Piper (42A Wolseley Road) belonging to the accused and to organise the refinance of the mortgages which involved millions of dollars;
Indeed, the accused made the deceased his power of attorney in order to create all the necessary documentation required to formalise the loan agreement in December 2007. At this time the accused trusted the deceased and thought highly of him.
(iv) Short term loans: the accused also forwarded the deceased $4.4 million dollars in May 2008 as part of a venture to provide short term loans to people.
30. By May 2008, however, the relationship between the accused and the deceased was beginning to sour. For example, in a meeting between the deceased and Paul Mathieson (who was the director of Amazing Loans) on 29 May 2008 in Honolulu the deceased complained that he was sick of the accused. And around this time the deceased came up with the plan to make a profit (at the accused's expense) out of share deal with Paul Mathieson.
31. 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 22 May 2008 in relation to a short term loan venture.
32. On 17 June 2008, the deceased transferred $1 million back.
33. The remaining money, $3.4 million was not repaid. It is the Crown case that around this time, the accused became suspicious of the deceased's motivations and intentions.
34. On 14 July 2008, the accused revoked the deceased's Power of Attorney (given to the deceased on 19 March 2008) and on 6 August 2008, the wife of the accused, Odetta Medich also revoked the deceased's Power of Attorney (also given on 19 March 2008).
35. 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 back to the accused.
36. On 19 January 2009, the deceased was charged with numerous criminal offences relating to a firebombing of the Tilley residence. The accused provided, at the time, $100,000 surety for the deceased as part of his bail conditions. That is, the accused put up $100,000 to guarantee the deceased would abide by his bail conditions and attend court when required.
37. It is the Crown case, however, that the accused provided the surety as a method of keeping tabs on the deceased's movements (and protecting his interests as the mortgages in relation to Wolseley Road, Point Piper, were still in the deceased's name). Some short time later the deceased sought an alternative surety to remove the accused and on 15 April 2009 Mr Bob Ell replaced the accused as the deceased's surety for bail.
38. In a letter dated 18 February 2009 (at the time when the deceased was seeking to find a substitute person as 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. [Letter located on Accused's computer in execution of search warrant].
39. On 20 August 2009 the ODPP following a review of the evidence, withdrew these charges and the deceased was discharged.
40. By 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 over the phone that the deceased had conned him in relation to the Amazing Loans Deal and other property transactions.
41. Later the same day Mathieson called the deceased and the deceased told Mathieson that he was going to meet the accused the following day, record their conversation and 'bring him down’.
42. On 6 February 2009, the deceased met with the accused and secretly recorded his meeting with him.
43. By March 2009, the relationship between the accused and the deceased was hostile.
44. On 10 March 2009, the accused received numerous letters of demand from the deceased's solicitors relating to the Amazing Loans Deal, Mowbray and Gerroa Deal and Wolseley Road Deal.
45. Between March and September 2009, the relationship between the accused and the deceased, rather than improve, continued to deteriorate. Throughout this period, the accused and the deceased were involved in 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.
46. As an example, on 8 April 2009, Justice Graham dismissed an application for a freezing order that had been filed by the accused against the deceased in relation to the Wolseley Road mortgage dispute and ordered the accused to pay the deceased's costs ($100,000).
47. By August 2009, the deceased was refusing to repay any of the money sought by the accused (approximately $7.5 million and setting aside Declarations of Trust dated 25 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) minus the monies already provided.
48. The dispute between the two men involved millions of dollars.
The major disputes between the deceased and the accused in more detail: [contained in an agreed facts document]
It is the Crown case that this evidence is relevant to the accused's motive to murder the deceased and the relationship between the two men.
1. Amazing Loans
49. The accused met Paul Mathieson after Mathieson purchased his house at Denham Court and the accused provided vendor finance for the sale.

50. In February 2005, Paul Mathieson started a company called Amazing Loans Pty Ltd, which was subsequently listed on the Australian stock exchange.
51. On 2 August 2006, the accused - through his company Ron Medich Properties Pty Ltd, agreed to provide a loan facility of $5 million to Amazing Loans at an interest rate of 14.5%. The accused was also granted options over shares in Amazing Loans which meant he could purchase those shares.
52. From 2006 the accused was the director and shareholder of his company Ron Medich Properties Pty Ltd. [RMP]
53. On 31 August 2006, the accused entered into a further loan facility with Amazing Loans for $15 million and was granted further options over shares in Amazing Loans.
54. On 20 April 2007, the accused entered into a further loan facility with Amazing Loans for $5 million - taking it to $25 million.
55. As at 30 June 2007, Amazing Loans had drawn down $7.5 million of the total loan facility ($25 million) and this sum was later increased to $11.5 million by September 2007.
56. Around this time the relationship between Mathieson and the accused began to sour as the accused did not agree with the way Mathieson was running Amazing Loans and wanted a greater say in the company.
57. Around this time, September 2007, the accused enlisted the assistance of the deceased to help his company deal with Amazing Loans and Paul Mathieson.
58. On 19 September 2007 the deceased sent a letter to the accused in his capacity as a director of RMP confirming that the accused had requested him (the deceased) to, amongst other things: Investigate the affairs and financial position of Amazing Loans Limited, to commence court proceedings and recover all secured monies from Amazing Loans.
59. The letter specified that the fee estimated for the engagement was $300 000.00.
60. The deceased undertook these roles and on 28 September 2007, AL repaid the accused $11.5 million that had been drawn down (or used) by Amazing Loans.
61. On 8 October 2007, the accused through RMP 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). That is, the accused assigned over to the deceased, by way of charge, the $25 million he had invested into Amazing Loans since August 2006.
62. The accused through RMP also assigned the deceased all his options deeds in Amazing Loans shares on 11 October 2007.
63. Following execution of these documents, the deceased instructed his lawyers to commence legal proceedings in the Supreme Court against Amazing Loans.
64. And on 1 November 2007 Supreme Court Proceedings were instigated against Amazing Loans by the deceased (on behalf of the accused).
65. On 2 November 2007, an agreement was reached between RMP and Amazing loans (brokered by the deceased). 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:
RMP would loan $15 million to Amazing Loans (Interest 10% and due in 12 months);
No further draw downs on the previous $25 million loan facility;
Options held by the accused in Amazing Loan (90 million) were cancelled upon payment to RMP 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 options was not obtained by Amazing Loans within 60 days, Mathieson Enterprises would acquire the options for $2.7 million and $127,000 respectively;
Amazing Loans will purchase the shares currently held by RMP in Amazing Loans 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;
Mathieson Enterprises will transfer 200 million shares in another company Mathieson was involved in, Investment Evolution Global (IEG) to RMP and the deceased in whatever proportion they notify Mathieson Enterprises;
RMP would discontinue the Supreme Court Proceedings on the basis Amazing Loans pay the accused's costs;
66. On 21 November 2007, $250 000 was transferred from Ron Medich Properties Pty Ltd Captain Cook Trust Account to a company controlled by the deceased for 'consultancy'.
67. On 29 November 2007 $460 000 was transferred from RMP Captain Cook Trust Account to another company also controlled by the deceased.
68. On 25 February 2008, the accused transferred another $3.8 million to Control Risks Pty Ltd, a company controlled by the deceased.
69. On 19 March 2008 the accused granted the deceased Power of Attorney.
70. On 27 May 2008 the deceased using this money, that is 3.8 million, discharged two mortgages owed to Bank West by him, being approximately $3.2m (over 11 Cranbrook Avenue, Cremorne - his residential home so paid that out), $362 000 (over 99 York Street - his office) and $60 000 in the bank's legal costs that the deceased was obligated to pay.
71. On 13 March 2008, Amazing Loans acquired all shares in IEG by issuing shares in Amazing Loans to all persons holding shares in IEG. As a result, RMP acquired 300 million shares in Amazing Loans.
72. In May 2008, Paul Mathieson secured a $100 million loan facility through Fortress Investments in New York and on 6 May Amazing Loans had repaid the $15 million loan owed to RMP with interest as outlined in their agreement in November 2007.
73. On 26 May 2008, the deceased flew to Honolulu where Paul Mathieson then resided.
74. On 29 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.
75. The relationship between the accused and the deceased was beginning to sour.
76. Over the next few weeks, Paul Mathieson remained in contact with the deceased regarding the sale of the shares owned by the accused.
77. 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 an agreement with the "new syndicate" to sell the shares on 31 December 2008 for approximately $8 million.
78. This deal was kept from the accused and was effectively designed to profit the deceased $8 million.
79. The deceased told Paul Mathieson that if he participated in this deal he would not have to pay any further amounts to the deceased.
80. The deal, however, never eventuated because Odetta Medich, the wife of the accused, failed (refused) to execute the share transfer to the deceased.
81. On 20 June 2008, the deceased and RMP entered into Deed of Agreement regarding (relevantly):
(i) the transfer of all the shares in Amazing Loans from RMP to the deceased for nil consideration;
(ii) the deceased would sell two thirds of the shares to Paul Mathieson for $3.5 million on or about 30 July 2008;
(iii) the deceased would sell the remaining balance of the shares either on market or to Paul Mathieson by 31 December 2008.
82. By this Deed, the deceased agreed to hold the proceeds of the sale of the Amazing Loan shares on trust to RMP.
83. The deceased maintained that on or around 7 July 2008 lawyers informed him that the share transfer had not been executed as the number of shares did not correspond with the share register.
84. The deceased maintained that he contacted Odetta Medich and asked her to sign a new transfer. The deceased maintained that Odetta Medich said she would not sign a new transfer.
85. The accused, however, maintained that the deceased, at all times up to 14 July 2008, was able to sign the share transfers using the deceased's Power of Attorney for RMP and, at all times up to 6 August 2008, was able to sign share transfers for Odetta Medich using her Power of Attorney.
86. On 14 July 2008, RMP revoked the Power of Attorney given to the deceased on 19 March 2008.
87. On 6 August 2008 Odetta Medich revoked the Power of Attorney given to the deceased on 19 March 2008.
88. On 5 February 2009, Paul Mathieson received an unexpected phone call from the accused in which he stated that he had been conned by the deceased in relation to the Amazing Loan Deal and other property transactions. 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".
89. On 6 February 2009 - the day after the phone calls between the accused and Mathieson and Mathieson and the deceased - the deceased and the accused met at the request of the deceased on the premise that they might sort out their differences. The deceased taped the conversation without the accused's knowledge in order to obtain some advantage over the accused.
90. On 10 March 2009, the deceased's solicitors sent a letter to the accused's solicitors stating that:
RMP is required to transfer to the deceased all shares held by RMP in Amazing Loans in accordance with their signed deeds and declarations in June 2008;
that the deceased has suffered 'significant loss and damage ' because RMP failed to execute the necessary documents.
RMP is taking steps to deal with assets in its name which may diminish the value of those assets and restrict its ability to compensate the deceased.
The deceased requires RMP to provide a written undertaking that it will:
not dispose of any assets before resolution of the matter
pay stamp duty on the Deed of Agreement and Declaration of Trust (in relation to properties) and
transfer the shares held in Amazing Loans by 13 March 2009.
If not, the deceased will commence legal proceedings;
The deceased has other claims against RMP for amounts owed to the deceased in relation to Amazing Loans.
91. By letter dated 18 March 2009, RMP's lawyers, refuted the allegations made in the 10 March letter and stated:
(i) The Declaration of Trust regarding the properties was not binding on RMP.
(ii) The deceased had engaged in misleading and deceptive conduct, and had applied duress to the accused and
(iii) That any attempt to bring proceedings against RMP would be vigorously defended and noted that should caveats be lodged over the properties, (to stop the sale of any property) proceedings would be taken immediately to have them removed.
92. On 9 May 2009, the deceased contacted Paul Mathieson requesting a copy of all correspondence between the accused and Paul Mathieson regarding the sale of Amazing loan shares.
93. Paul Mathieson responded on the same day stating that he had no direct correspondence with the accused except one phone call where he stated " I don't want to say anything over the phone but McGurk will be fixed up!". Paul Mathieson told him that the accused had said he had been conned by the deceased and would be seeking revenge.
94. On 15 May 2009, Paul Mathieson flew to Auckland to attend a business meeting with the accused and two of his associates. 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 the deceased's current criminal charge (of arson).
95. 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 fire bombing, either way he won't be a problem."
96. As at 3 September 2009 (the day of the murder) the deceased was claiming that he was seeking the payment of his commission for his involvement in the Amazing Loans deal, while the accused was maintaining the deceased was not entitled to anything but rather owed him approximately $7 million dollars, compensation and damages.
2. Wolseley Road, Point Piper
97. The accused and his former wife, Odetta Medich purchased 42A Wolseley Road, Point Piper in 2003 for $7,750,000.
98. On 12 October 2004, Ron Medich Properties entered into a Deed with Sally-Ann Tilley regarding the sale and development of 42A Wolseley Road, Point Piper.
99. The accused sold the land for $12.5 million and provided $7.5 million in vendor finance to the Tilleys.
100. 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.
101. In December 2007 (before the accused went on a trip to Hawaii), Adam Tilley (Sally-Anne's husband) 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.
102. The accused agreed to provide another $8.65 million.
103. On 14 December 2007, the accused appointed the deceased Power of Attorney over the Tilley agreements to oversee the loans and mortgages relating to 42A Wolseley Road, between him (the accused) and the Tilleys.
104. The Power of Attorney expired on 31 December 2007.
105. 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 a number of deeds).
106. The due date for the payment of both loans (of $7.5 and $8.65 million) was 21 June 2008.
107. The deceased then registered two mortgages to secure the $7.5 million vendor finance and to secure the $8,650,000.
108. On 15 May 2008, the accused assigned over the deeds and mortgages over 42A Wolseley Road, Point Piper to the deceased.
109. On 21 June 2008, the Tilley loan was due. Adam Tilley, Sally-Anne's husband, offered part payment to the deceased which he did not accept.
110. On 24 June 2008, the deceased sent a letter of demand to Sally-Ann Tilley regarding the $8,650,000 due.
111. Around the same date, the deceased registered three caveats over properties that the Tilley's had an interest in.
112. The loans of $7.5m and $8.65m were not repaid despite a letter of demand sent to the Tilley's.
113. On 25 June 2008, the deceased signed two declarations of trust. The deceased declared that he held the two mortgages over the Point Piper property on trust for the accused.
Supreme Court Proceedings
114. On 13 August 2008, the deceased (on behalf of RMP) instituted proceedings in the Supreme Court seeking possession and sale of 42A Wolseley Road following non-repayment of the loan.
115. On 9 October 2008, the Tilley's filed a response against the deceased and RMP maintaining that they had entered into an oral agreement with Ron Medich in June 2004 regarding the development of Wolseley Road and that the Deed entered into on October 2004 was to be read subject to this agreement.
116. 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.
117. The deceased did not reassign the mortgages back to the accused.
118. In late January 2009 Tilley and others commenced urgent proceedings in the Supreme Court for the removal of a caveat lodged by the deceased (on behalf of RMP) in June 2008 over a property they wished to sell as it was preventing the sale. These proceedings were effectively dubbed the Linkshore Proceedings.
119. On 3 February 2009 HH Justice Bergin in the Supreme Court of NSW made orders concerning the Linkshore proceedings.
120. And three days later, on 6 February 2009 his Honour ordered the plaintiffs (in the Linkshore Proceedings) pay the costs of the deceased. Both of these proceedings were conducted in the Supreme Court of NSW in Queens Square.
121. On 18 February 2009 the accused and the deceased filed separate defences to the Tilleys claim in the Supreme Court.
122. On 16 March 2009 the deceased's solicitors sent a Letter of Demand to the Accused's and RMP's solicitors requesting:
(i) indemnity payments for costs incurred during the Tilley proceedings in the sum of $1.5 million; and
(ii) $3 million for stamp duty.
123. On 17 March 2009, RMP filed a cross-summons against the deceased seeking:
(i) a declaration that he held the mortgages (for Wolseley Rd) on trust for the accused and Odetta Medich;
(ii) orders that the trust property be given back to the accused and Odetta Medich;
(iii) and orders that equitable compensation and interest be paid.
124. The deceased did not transfer the property, being the mortgages back to the accused, RMP nor to Odetta Medich.
125. On 8 April 2009, solicitors for the deceased sent a letter to solicitors for the accused requesting that:
(i) RMP pay all of the deceased's costs incurred to date in the Tilley/Linkshore Proceedings;
(ii) pay stamp duty on the Declarations of Trust;
(iii) and to pay the deceased's legal costs of taking advice in relation to the procedural steps of being removed as a plaintiff from the Tilley proceedings.
126. On 8 May 2009, the deceased filed another claim against RMP seeking costs for acting in the proceedings and stamp duty on the first and second trust deed.
127. On 13 July 2009, a letter was sent from solicitors for the deceased to the solicitors for the accused demanding payment of $153,487.63 as money owed to the deceased for "Indemnities under Declarations of Trust".
128. On 16 July 2009, a letter was sent from Clayton Utz (the accused's solicitors) to Holman Webb (the deceased's solicitors) enclosing the cheques as requested.
129. On 22 July 2009, Consent Orders were signed by the accused, RMP and the deceased whereby, the accused, RMP and Odetta Medich 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. And the deceased agreed to transfer the mortgages back.
130. 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, (three months after the deceased was murdered) the accused compromised and paid $68,370 in costs (to the then estate of the deceased).
3. Mowbray/Gerroa Properties
131. 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").
132. The deceased and the accused entered into an oral agreement for RMP to purchase both the Mowbray Property and the Gerroa Property.
133. Both later maintained there were different terms and conditions attached to the oral agreement made, [see 191]
134. 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.
135. On 4 October 2007, $138,000 was transferred from RMP Captain Cook Trust Account and credited to a company controlled by the deceased, Krugdem Pty Ltd.
136. On 11 October 2007 the accused authorized the transfer of $1,842,000 to Krugdem Pty Ltd.
137. On 30 November 2007, the mortgages secured over the Mowbray Property were transferred to Acett Pty Ltd (a company controlled by the deceased) for $1,678,717.

138. On 13 December 2007 RMP transferred $4,050 000 from Ron Medich Superannuation Fund to Suncorp account for Control Risks Pty Ltd (controlled by the deceased).
139. On 21 December 2007, RMP purchased the Mowbray Property from Acett Pty Ltd (a company controlled by the deceased) for $1,420,000.
140. On 20 December 2007, the Gerroa Property was purchased for $2,190,000 from Acett Pty Ltd.
141. On 25 June 2008, RMP entered into two Deeds of Trust with Kimberly McGurk, the wife of the deceased.
142. 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.
143. On 10 March 2009 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.
144. The accused did not transfer the property.
145. On 16 March 2009, Kimberley McGurk lodged a caveat over the Mowbray Property.
146. In response to the letter from Mrs McGurk's lawyers, RMP commenced Federal Court proceedings on 18 March 2009 claiming that:
(i) RMP paid $6,030,000.00 for the purchase of the Gerroa and Mowbray properties when those properties were in fact purchased by the deceased for $3,798,744.68.
147. RMP sought an order that the deceased's companies account to RMP for the difference between the two amounts, being approximately $2.31 million.
4. Transfer of $4.4 million
148. On 22 May 2008, the accused transferred $4.4 million to Bentley Smythe (another company controlled by the deceased) at the request of the deceased for a supposed financial deal with security over a property in Manly.
149. The accused shortly after transferring the money insisted that the money be returned and on 17 June 2008, $1 million was transferred back to the accused from Bentley Smythe.
150. 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 Loans deal.
Federal Court Proceedings
151. On 18 March 2009, RMP instigated Federal Court proceedings against the deceased, Kimberley McGurk and companies controlled by the deceased.
152. 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, Cremorne be charged in favour of RMP;
(5) Damages, Interest and Costs.
153. On 27 March 2009 the matter was listed in the Federal Court and the deceased counter claimed that:
(i) RMP was indebted to him for $8.3 million for the Amazing Loans deal ($7.2 million had already been repaid);
(ii) RMP was 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).
154. On 8 April 2009, the matter was listed before Justice Graham at the Federal Court who dismissed the interlocutory process filed by RMP and ordered RMP to pay the deceased's costs.
155. Costs were assessed at $100,640.05.
156. On 21 June 2009, Kimberly McGurk filed a claim against the accused seeking:
(i) a declaration that RMP holds 50% of the Gerroa Property and Mowbray Property on trust for her;
(ii) and an order restraining RMP from dealing with the properties in a way which is inconsistent with Kimberley McGurk's interests.
157. On 25 August 2009, the deceased filed another Claim against RMP seeking
$1,420,000 re the Mowbray property;
Damages, costs and interest;
Declaration that RMP was liable to indemnify the deceased against any amounts the deceased was obliged to pay in tax.
158. And the deceased maintained the RMP owed the deceased:
The amount of the fee unpaid under the Amazing Loans Agreement being:
a. $11, 666,292 plus
b. Either:
a. The value of 300 million shares in Amazing Loans; or
b. The value of the 200 million shares in IEG; or
c. The loss or damage alleged; plus
c. The value of the interest on the $15 million Loan; minus
d. $3.8 million;
e. $3.4 million;
f. $350 000, being the value of 50% of the "Flying Pegasus" yacht ;
g. $3,015,000 being half of the funds provided by RMP in connection with the purchase of the Mowbray Property and the purchase of the Gerroa Property.
h. $710 000, being half of the balance of the funds held by Control Risks.
159. As at the same day, that is, 3 September 2009, RMP maintained that the Deceased was not entitled to any further monies from RMP and sought orders that:
a. Bentley-Smythe Pty Ltd pay RMP $3,400,000
b. Control Risks International Pty Ltd pay RMP $2,231,255.32
c. Acett Pty Ltd pay RMP $1,420,000
d. The payment of equitable compensation for breach of his duties as a trustee and
e. The payment of damages
160. In summary, the deceased asserted, amongst other things, that he was due $11,666,292 pursuant to the Amazing Loan deal with the accused, plus 1/3 of the 300 million Amazing Loan shares held by the accused.
161. 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).
162. And as at the date of the murder, the accused was seeking:
(i) the repayment of at least $7.6 million from the deceased and companies controlled by the deceased ($3.4m from Bentley Smythe, $2,231 m by Control Risks Pty Ltd, $1,420 000 by Acett Pty Ltd);
(ii) an order setting aside the Declarations of Trust dated 25 June 2008 in which 50% of both Gerroa and Mowbray properties were held by the accused in trust for Kimberley McGurk;
(iii) equitable compensation for breach of fiduciary duty by the deceased;
(iv) damages, interest and costs.
163. 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.
164. 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.
165. During early 2009, the accused increasingly began to express this desire to his close friend and business associate, Lucky Gattellari for the deceased to be killed which culminated in the accused's direction to Gattellari to go and organise the killing of the deceased and the intimidation of the deceased's wife.
The Relationship between the accused and Fortunato or Lucky Gattellari
166. 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 had been, to a degree, socially connected.
167. 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, with his brother Rocky, and during that time became closer to the accused who was quite financially supportive of Gattellari in the running of the business.
168. Gattellari then operated the Eling Forest Winery in Berrima 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 nor sought to be repaid.
169. In about 2004/2005 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.
170. 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.
171. The accused provided several hundred thousands of dollars as a means of getting the venture off the ground but no land was ever purchased or developed. This particular venture was ongoing up and until the time of the arrests in October 2010.
The Boomerang Funeral Fund
172. 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.
173. 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'.
174. Gattellari held approximately 10-20% of the shares in the company (without any actual financial input but based upon it being his proposal and that he would run the business on a day to day basis) whereas the accused and Paul Mathieson held the remaining shares.
175. Gattellari operated the business from an office on George Street Liverpool, and reported back to the accused on the activities of the business.
176. The venture however, was not successful despite the accused investing approximately between $800 000 - $1 million into the business. Again, there was no formal documentation outlining the details of the accused's significant financial investment into the business.
Electrical business venture
177. In early 2008 Gattellari was approached by business associates to become involved with an electrical company called Rivercorp which was in financial stress. Gattellari approached the accused, who liked the idea, and Gattellari (with the accused's money) injected an initial $400 000 into the company.
178. Around 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 financial direction.
179. Shipley recommended the company be placed into administration. Soon after the accused advanced a further $5 million into Rivercorp (to pay out a bank loan) and to seek to place the business on a sound financial footing and allow it to move forward and expand.
180. As at September 2008, the company Rivercorp was placed into administration and a deed of company arrangement was entered into.
181. 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 electrical companies which were loaned money and then acquired when the loan was not repaid.
182. These companies included Global Power, trading as IC Light and others, who borrowed money but were unable to repay and was consequently taken over with the control and the shares of the company in May 2009 into Riv Developments and subsequently to Riv Group - the accused's company.
183. 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 (in Brisbane) and ANS Electrical.
184. The accused's, Shipley's and Gattellari's ultimate aim in this venture was to take over various electrical companies to form a conglomerate with the view to set up a back door or public float when it was expected they would all obtain a huge profit. All the companies were in financial stress but had considerable receivables and required a loan of monies to keep afloat.
185. 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 accused's Riv Group company.
186. The accused substantially funded the venture using his accounts from the Captain Cook Trust and Ron Medich Properties Pty Ltd. 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.
187. Shipley would regularly advise the accused as to the status of the companies. He would also conduct due diligence on the viability of businesses, create a business proposition and put it to the accused who would make the final decision.
188. Gattellari's role was to oversee the running of these businesses on behalf of the Riv Group. He initially worked from home and the accused's office in Leichhardt but later moved out to ANS offices in Chipping Norton, and was paid anywhere between $1500 - $3200 per week depending on how the businesses were running.
189. Gattellari himself had no formal tertiary qualifications (no accounting or business degree) and never pretended or claimed that he did.
190. A significant part of Gattellari's role, however, was to keep the accused company and you will hear that Gattellari spent the majority of his time with the accused at restaurants, at the races and on interstate or international trips.
191. The electrical 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, in October or November 2008, the accused provided Gattellari with a large amount of cash money (approximately $200 000 in cash) to cover payroll and other expenses.
192. At around the time of their arrests in October 2010, 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 other companies in through the back door'. As stated earlier, upon being publicly listed the accused and Gattellari expected to receive a substantial financial reward.
193. The take-over of AAK never eventuated and upon his arrest in October 2010 the accused had invested between $14-16 million into this venture over approximately a two year period.
194. There was very little formal documentation of the terms and conditions of his substantial investment into this venture until around June 2010.
Recovery of money
195. The accused, from around 2008, also used Gattellari to organise and at times directly participate in collecting debts owed to the accused. Gattellari then, together with his associates, including Mathew Crockett, Senad Kaminic, Haissam Safetli would approach people who had not repaid their loans to the accused and intimidate them into making their repayments.
196. 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'.
Slush fund payments
197. 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 restaurants and horse racing'. This was aimed at allowing the accused to avoid detection of these expenses from for example, his wife.
198. These payments were not regarded as interest or capital repayments on the vast amount of monies the accused was injecting into the electrical companies but they were recorded in rough ledgers created by Gattellari kept in his diaries at the time.
199. One ledger, for example, 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.
Loans provided to friends and family
200. During 2008 - 2010 Gattellari also loaned money (from the money the accused provided to the electrical companies) to his brother Rocky and his daughters and friends. These were simply documented in Gattellari's diary and were provided with full knowledge and authorization of the accused.
201. Gattellari and the accused, in specifically late 2008 and early 2009 were exceptionally close. Shipley, who near-daily observed their relationship over this time, described them as 'joined at the hip' and as two people who 'spoke with one voice'.
202. It was due to this mutual dependence upon each other and the intensely close business and personal friendship between them (and the willingness of Gattellari to do anything for the accused at this time) that the accused turned to Gattellari to permanently resolve the burning issue he had with his business adversary, the deceased.
Gattellari and the deceased:
203. Gattellari did not particularly like the deceased but he had no personal reason to want him dead. He received no personal benefit - financial or otherwise - from his involvement in the murder of the deceased.
204. He agreed to assist the accused in arranging the deceased's murder because of the particularly close personal and business relationship that existed between him and the accused.
205. Gattellari did not know the deceased very well and only met him on four occasions:
(i) In around November 2007 when the deceased came to the Boomerang Funeral Fund office with an associate and two accountants at about 10 or 11 in the morning. The deceased told Gattellari that the accused had requested an audit on the business and for the accountants to go through the books.
Gattellari telephoned the accused to ascertain whether he was to pass over all the paperwork, including the handwritten notes and he was informed that he was and he gladly did.
The accountants who attended on that day observed no animosity whatsoever between the deceased and Gattellari but rather normal discourse and conversation between the two men;
(ii) Some time later the deceased telephoned Gattellari and asked to meet up - they did at a cafe underneath the building the deceased worked at in the city. The deceased then sought Gattellari's assistance in 'sorting out a guy who was causing him (the deceased) problems' and Gattellari told the deceased that he did not do that sort of thing and was not interested.
They then had a brief chat about other matters and the deceased thanked him for coming and they shook hands.
(iii) On another occasion, around the time the accused and Gattellari were starting to become involved with Rivercorp, the deceased was at lunch with the accused and several others, including Gattellari at the Tuscany Restaurant in Leichhardt.
During the lunch the deceased gave his opinion that going into the electrical business was not a profitable business venture. This annoyed Gattellari.
(iv) And finally, a few days after that lunch Gattellari contacted the deceased and arranged to see him at his office in the city as he wanted to personally speak to him following the comments the deceased made at the lunch a few days before.
Around 13 May 2008 Gattellari walked into the office (with Kaminic) and saw a person named Will Manning who told him where the deceased was.
Gattellari then had a brief meeting with the deceased whereby Gattellari told the deceased that he would appreciate it if he (the deceased) would stay (sic) of his business and he would stay out of his.' The deceased replied, 'OK mate, no problem'. That was the last interaction Gattellari had with the deceased and it ended amicably.

The two then shook hands.
The Genesis of the Contract to kill Michael McGurk:
206. Gattellari and Senad Kaminic had been friends for several years and Kaminic drove Gattellari around in 2008 as Gattellari, at that time, would often drink alcohol in the morning.
207. In late 2008 Kaminic introduced Bassam Safetli to Gattellari as a person who could conduct deliveries for the electrical companies. In turn Gattellari then met Haissem Safetli, Bassam's brother.
208. The Safetli brothers were also requested to conduct debt collecting work for Gattellari in late 2008 /early 2009.
209. At some point whilst debt collecting for Gattellari on behalf of the accused, 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'.
210. At around this time the accused and the deceased's relationship had completely broken down and the accused 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. Consequently, Gattellari spoke to Kaminic who suggested Haissam and Bassam Safetli conduct the surveillance.
211. Also, around this time the accused and the deceased were involved in Supreme Court proceedings (Linkshore/Tilley proceedings). On either 3 or 6 February 2009 when those proceedings were listed at the Supreme Court in Sydney, Kaminic drove Gattellari to the vicinity of the Supreme Court where they met up with the accused and others in a near-by coffee shop before Court. Concern was raised as to whether the deceased would turn up to the proceedings so Gattellari at the behest of the accused asked Kaminic to arrange for Bassam Safetli to go to the deceased's house and conduct surveillance on him.
212. A few weeks later Kaminic arranged for Gattellari to meet up with Haissam and Bassam Safetli. At the meeting Gattellari asked them to carry out further surveillance on the deceased and supplied them with information relating to the deceased's name, home address and business address. Gattellari told the Safetlis he wanted them to follow the deceased and find out everything he could about him.
213. The Safetlis then attended the deceased's home address and his business address in the city.
214. Bassam Safetli, during the course of the surveillance, also took photographs of the deceased (and downloaded them onto a CD) and provided them to Gattellari who then passed this CD onto the accused.
215. Information obtained during the surveillance was continually relayed from Haissam Safetli, through to Gattellari to the Accused.
The Contract to kill the deceased:
216. A short time later Gattellari had a meeting with the accused at his office in Leichhardt where they discussed the deceased and the ongoing disputes between them.
217. Kaminic also attended Leichhardt with Gattellari but was seated outside the office reception area.
218. The accused told 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.'
219. 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.’
220. Kaminic asked him what was going on and Gattellari replied ‘I don't know but it looks (like) he wants him finished off.'
221. 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 Haissam Safetli to ascertain if he would do it.
222. These occasions were not the first times that the accused had expressed to Gattellari his desire to get the deceased out of his life. 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.'
223. 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.
224. The accused was also very embarrassed and humiliated by the way the deceased treated him and believed he made a fool of him.
225. 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.
226. Kaminic then organised a meeting between Haissem Safetli and Gattellari.
227. Gattellari told Safetli 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.
228. 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.
229. During this meeting Gattellari also informed Safetli that after the murder of the deceased the accused wanted the deceased's wife to receive a threatening message that she had to repay her husband's debts.
230. 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.
231. The accused complained about the amount but agreed to paying it. 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.
232. A couple of days later Gattellari drove to the accused's home on Wolseley Road, Point Piper with Kaminic.
233. 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.’
234. Gattellari took hold of the money and left to drive back to Chipping Norton with Kaminic where after taking out around $45 000 from the cry-vac bag he placed the remaining money into a safe located in his bedroom.
235. Gattellari placed money into a A4 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.
236. Some of this remaining cash was then handed to Shipley to inject into the electrical companies under the Riv Group as there was a constant need to keep the various companies afloat.
237. Over the next 6 months, Gattellari would draw from the company accounts to pay Safetli for the murder on a very ad hoc basis.
238. Over the next few months the accused also provided another lump sum of $250 000 cash for the payment of the murder.
April 2009 - July 2009
239. It was not expected that the deceased would be murdered immediately but as the weeks (and months) went by, the accused became increasingly frustrated at the time it was taking for the deceased to be killed.
240. 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.
241. At one meeting, 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.'
242. On 15 May 2009, Paul Mathieson flew to Auckland to attend a meeting with the accused, and during that 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."
243. 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.'
244. This followed repeated complaints and questioning from the accused to Gattellari as to why it was taking so long.
245. 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 that person was regularly taking significant amounts of the cash, they constantly delayed and prevaricated about committing the actual act.
246. Gattellari nor the accused had any knowledge of this at the time.
247. 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.
248. 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
249. 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.
250. 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. It was agreed that Zrieka would be paid $3000.
251. On 3 July 2009 Zrieka followed the accused from Tuscany's restaurant in Leichhardt and deliberately ran into his car at the corner of Sussex and King Streets in the city.
252. Zrieka, over objection from the accused, called the police who arrived shortly after. The accused was breathalysed and then taken away by police although he was not charged as he was not over the limit. 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.
253. 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.’
254. 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
255. During July 2009 Gattellari was still receiving constant pressure from the accused as to when the murder was going to take place.
256. Consequently, Gattellari re-laid 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.
257. 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.
258. Gattellari stated that the deceased was costing the accused a lot of money. Mason said he knew someone who might be interested. A meeting was then arranged between Safetli and this potential other recruit at Malabar RSL.
259. Gattellari was informed that this recruit wanted a lot of money upfront (around $200 000) and Gattellari told Safetli he was not prepared to part with that amount of Medich's money to someone he did not know.
Jindabyne: 20 - 24 July 2009
260. The deceased, who had been arrested in January 2009 on arson charges, obtained a variation to his bail conditions to report to Jindabyne Police station from 20 - 24 July 2009 whilst he was on a family holiday.
261. On around 18 July 2009 the accused met Gattellari and asked whether or not 'these guys' knew where the deceased was or what he was doing.
262. The accused then informed Gattellari of the deceased's intended trip to Jindabyne who, in turn, instructed Kaminic to notify Safetli of this upcoming holiday.
263. Upon being notified Safetli requested additional money to fund the trip to Jindabyne to murder the deceased. This message was passed onto Gattellari via Kaminic. Gattellari obtained either $5000 or $10 000 from the money stored in his safe and had it passed onto Kaminic to give to Safetli.
264. Gattellari and Kaminic departed Australia for China on 23 July 2009. Safetli actively planned and made preparations to drive to Jindabyne to murder the deceased, including recruiting a person to assist. Ultimately, however, due to delays and the unreliability of Safetli's associate, Safetli never even attended Jindabyne.
August 2009
265. In around August of 2009 Safetli met with Gattellari at Chipping Norton and told him the 'job' will be done.
266. Gattellari told Safetli that the deceased was costing the accused 'millions' and that the accused wanted a 'heads up' before the murder so he could ensure he was in a public place when it occurred.
2 September 2009
267. On 2 September 2009 Gattellari and Kaminic travelled to Narooma and stayed overnight in a local hotel and met with Mason's daughter for dinner.
3 September 2009
268. During the morning and early afternoon of 3 September 2009 there was telephone contact between Gattellari and the accused and Gattellari and Safetli. The last recorded contact being a text message sent to Gattellari at 15.09 on Safetli's brother Bassam Safetli's mobile phone.
269. At about 1pm Gattellari and Kaminic arrived back in Sydney and headed to Market City and had lunch in a private room at the China Grand restaurant. The accused joined them a short time later. At about 4 pm they all left the restaurant and attended the Babylon Massage Parlour.
270. During the afternoon Haissem Safetli and Christopher Estephan drove to 11 Cranbrook Avenue Cremorne, the home of the deceased and waited for the deceased to return home.
271. Safetli had possession of the modified firearm at the time and had the intention of murdering the deceased.
272. At 2.54pm this vehicle in which Safetli and Estephan were in was recorded travelling eastbound on the M5 motorway passing through a toll collection point without a valid electronic toll pass.
273. At 6pm Gattellari, Kaminic and the accused left the Babylon Massage Parlour in Market City and the accused attended the Bligh Bar in Sydney to meet other friends for a drink.
274. Gattellari was driven home to Chipping Norton by Kaminic.
275. At around this time the deceased was driving home from his York Street office and picked up his 9 year old son from a school friend's home before going to Charlie's Chicken shop with his son to buy a takeaway meal.
276. At about 6.25 pm the deceased drove his Mercedes sedan from Spofforth Street into Cranbrook Avenue Cremorne, stopping it on the southern side of the street outside the side entrance to his house. As he opened the driver's door and began to exit the car he was shot at close range by Safetli's modified rifle.
277. The deceased was shot behind his right ear fatally wounding him. The deceased son was present in the front passenger seat of the car at the time.
Actions of Safetli and Estephan Post Murder
278. Following the shooting Estephan and Safetli drove the vehicle from the murder scene stopping at Bicentennial Park, Rozelle Bay and then the M5 Motorway allowing Safetli to dispose of the firearm.
279. On 15 September 2010, police divers recovered this weapon.
280. At 8.03pm on 3 September 2009 a text message was sent to Gattellari from the mobile phone of Safetli's brother, Bassam.
281. Kaminic received a phone call from Bassam Safetli stating that the job is done.
282. The following day Gattellari met the accused for lunch at the Tuscany Restaurant in Leichhardt and asked 'are you happy that it is done?' and the accused replied words to the effect, 'it's taken long enough.’
283. The following day Safetli received a text message from Kaminic arranging to meet him to receive part payment of the outstanding amount owed to him for committing the murder. Kaminic drove to Safetli's residence at Elderslie and gave him an envelope or bag containing $20 000.00.
284. A few days later Safetli received another package of cash from Gattellari via Kaminic. This occurred regularly over the next few months - Gattellari would provide Kaminic with a package or bag containing cash as payment for the murder of the deceased and Kaminic would arrange to meet Safetli and then hand over the payment monies.
285. The amounts varied between $10,000, $20 000 and $40,000. This continued until the balance of the $300 000 was paid, with the final payment being Gattellari giving the offender his Honda Jazz motor vehicle, worth around $5-6000 in early 2010.
The relationship between the accused and Gattellari post murder and in 2010
286. In the days following the murder of the deceased the accused received intense media attention and consequently instructed Gattellari to 'stop everything, there is too much shit happening, too much tension' referring to the threatening of the widow of the deceased until the attention upon him had died down.
287. Strike Force Narrunga was established by the NSW police to investigate the murder.
288. On 7 September 2009, after receiving information, police executed a search warrant upon the residence of Gattellari, during which a number of business documents, diaries and firearms were seized.
289. In December 2009 lawful interception of the mobile telephone services used by the Accused, Gattellari, Kaminic, Safetli and Estephan commenced.
290. Following the murder of the deceased the accused maintained an even closer personal and business relationship with Gattellari. He maintained his financial support and involvement in the electrical companies during the remainder of 2009 and in 2010 although this was to a lesser extent as his cash flow was significantly reduced and he received enormous pressure from his wife to cease funding the electrical companies.
291. After one heated exchange with his wife (over the telephone) the accused, whilst having lunch with Gattellari, Kaminic and Crockett, stated, words to the effect of, ‘I should have fucked her off like McGurk'. He was told to 'shh'.
292. Around December 2009 the accused transferred his shares (and those of Les Samba) in Amazing Loans and IEG to Riv Developments (Gattellari's company) in order for Gattellari and Shipley to negotiate the sale of his shares to Paul Mathieson.
293. In February 2010, Shipley (initially prior to Christmas 2009 it was to be Gattellari and Shipley) travelled to Hawaii to attempt to negotiate the sale on the accused's behalf on the pretence that the accused no longer had anything to do with the shares. These negotiations continued through most of 2010.

Bob ELL offered to pay the bail amount and did so. Michael and I chose not to use the approved line of credit for payment of bail as I was not confident and had no knowledge of the business dealings of Bentley Smythe at 99 York Street, Sydney. The charges against Michael were dropped a couple of weeks prior to his death and Michael was making an application for costs to be awarded to him as a result. Michael's legal representative in that matter was Solicitor Richard ALLSOP. I am aware that there are other financial debts Michael had with Bob ELL. It has just come to my attention since Michael's death and i have been advised through my solicitor Vivian EVANS that there are dealings between myself and Bob ELL which were organised by Michael.
10. Around that time, Michael commenced court proceedings against Ron MEDICH in relation to money he believed was owed to him as a result of a deal with Amazing Loans. Ron MEDICH employed Michael to do that job and an agreement was established for his services. Michael would receive a percentage (millions) and Ron MEDICH was to pay the tax on that amount. As a result of Michael's work, Ron MEDICH did end up recouping a substantial amount of money from Amazing Loans. Some payments were made by Ron MEDICH to Michael but a dispute arose part way through and Michael engaged lawyers to protect his position. Part of the arrangements between Michael and MEDICH was that Michael was to receive a 50% share of the boat known as the Flying Pegasus. As a family, we went out on the boat on several occasions prior to the dispute. Michael was confident he had enough documentation to substantiate his case.
11. As a result of this, Michael had very little to do with Ron MEDICH. Michael communicated to me that Ron MEDICH was fabricating information to do with the Arson charge against Michael. Ron MEDICH and a person by the name of Andrew HOWARD gave evidence against Michael for that matter. Michael had told me that Ron MEDICH had perjured himself in statements. Andrew HOWARD was a person known to Michael for a number of years. I'm not sure how Michael knew him. He seemed to pop back in the picture around this time, Michael had little respect for Andrew HOWARD.

The evidence of Ms McClymont

Ms McClymont is a journalist who has worked for the Sydney Morning Herald since 1990. She made a statement to police on 7 September 2009 in which she made reference to the fact that in or about mid-July 2009 she commenced working on what she described in her statement as “the McGurk story”. In the course of researching and publishing parts of that story, Ms McClymont met with the deceased, who spoke about his relationship with the accused. Paragraph 26 of her statement is in the following terms:

McGURK rang me about 9.40am on the following Monday 24th of August 2009. He was angry about the story written by Vanda and I, which had appeared that morning in the Sydney Morning Herald. He felt that even though the charges had been dropped, it made him look guilty. He wanted to know why we were not going after the more serious criminal, Ron MEDICH and he said words to the effect," I don't think you understand what this guy is like and what he is capable of doing". McGURK said he was aware that MEDICH planned to have him killed. He repeated it again and I said to him that we could not write anything on MEDICH unless he gave us the proof that he had been promising. He enquired as to whether we hadmade any further inquiries into HADDAD and ARBIB. I told him we had not yet started on that line of inquiry. I then asked him if he had any further documents that we could use. He said that he was hoping to have something to us by the end of the week. He also said that he was planning to have lunch with Adam TILLEY later that day and he was hoping to get something concrete from TILLEY about the threats that MEDICH had made against TILLEY. But when I rang him back later that afternoon he told me that TILLEY had put off lunch and he was yet to see him.

The Crown presses the bolded portion of that paragraph.

Evidence of the relationship between the accused and Gattellari

The Crown will seek to lead evidence of what it alleges was the “unusually close relationship” between the accused and Gattellari. That evidence comes from Gattellari and falls into the following broad categories:

surveillance of the accused’s wife in or around February 2010;

the “continued close business relationship” between the accused and Gattellari following the deceased’s murder and prior to the intimidation of the deceased’s wife, which included the transfer of shares and the granting of a Power of Attorney by the accused to Gattellari; and

evidence of “debt collecting” by Gattellari on behalf of the accused.

As to the first of those categories, the Crown proposes to call evidence from Gattellari that the accused wanted to obtain information that would assist him and disadvantage his wife, and that he utilised Gattellari to arrange for his wife to be followed. The Crown asserts that this evidence reflects the “inherent trust” which existed between the accused and Gattellari, and the close nature of their relationship during the period following the deceased’s murder.
As to the second category, the Crown proposes to call evidence from Gattellari, Mathieson and others that following the murder of the deceased, but prior to the intimidation of the deceased’s wife, the accused transferred his shares in Amazing Loans (as well as other shareholdings) to Riv Developments (which was controlled by Gattellari) and that he asked Gattellari to put pressure on Mathieson (the Director of Amazing Loans) to recover money that the accused had earlier invested in that company. It will be alleged that Gattellari then arranged, on behalf of the accused, for another person, Kim Shipley to travel to Hawaii in February 2010 in order to convince Mathieson to buy back the accused’s shares. The Crown will also rely upon the fact that the accused granted Gattellari Power of Attorney over his affairs as an indication of the trust which existed between them.
Finally, the Crown proposes to call evidence from Gattellari and others in order to establish that the accused engaged Gattellari on and from about 2008 to attempt to collect outstanding debts for him. It will be alleged that the attempts involved the making of threats and the recruiting, by Gattellari, of other persons to deliver such threats to people on the accused’s behalf.

SUBMISSIONS OF THE PARTIES

Submissions of the Crown

The Crown originally filed a tendency notice in respect of the evidence which is the subject of the present objection, but has since abandoned reliance upon such notice. Leaving aside the evidence of Ms McClymont, the Crown seeks to lead the evidence on the basis that it generally establishes the nature of the relationship between the accused and the deceased, and the accused and Gattellari, at material times.
The Crown submitted that the evidence of Mathieson was highly relevant and probative in light of the fact that the events about which Mathieson gives evidence occurred at or about the time at which, on the Crown case, the relationship between the accused and the deceased had irretrievably broken down, and only a short time prior to the accused’s approach to Gattellari to engage him to take steps to arrange the deceased’s murder.
The Crown further submitted that what the deceased had allegedly said to Mathieson demonstrated “the toxicity” of his (i.e. the deceased’s) relationship with the accused, and demonstrated in particular that it had not improved since February 2009. The Crown further submitted that Mathieson’s evidence demonstrated the fact that “the venom” which existed between the deceased and the accused had increased in the period leading up to the deceased’s death.
In terms of the evidence of the deceased’s wife, the Crown submitted that the deceased’s belief about the accused fabricating evidence against him was a further illustration of the “toxic” state of his relationship with the accused in 2009.
As to the evidence of Ms McClymont, the Crown submitted that the deceased’s statements to her were admissible pursuant to s. 66A of the Evidence Act 1995 (NSW) (“the Act”) as evidence of his contemporaneous feelings, intentions, knowledge and state of mind.
The evidence of the surveillance said to have been arranged in respect of the accused’s wife was said by the Crown to demonstrate the inherent trust between he and Gattellari, and the close nature of their relationship at that time. A similar submission was made in relation to the evidence of the transfer of shares, and the granting of a power of attorney by the accused to Gattellari. It was submitted that such evidence demonstrated the “intense bond and level of trust” between the accused and Gattellari. It was further submitted that the evidence served to place the accused’s request to Gattellari to have the deceased’s wife intimidated into the proper context. The Crown further submitted that this evidence was capable of rebutting the suggestion that Gattellari had committed any act for his own reasons, and of his own accord.
Finally, the Crown submitted that the evidence of Gattellari’s “debt collecting” carried out on behalf of the accused was further evidence of the extent and depth of the relationship between the accused and Gattellari. It was submitted that in the absence of such evidence, the jury would be left with the artificial view that the accused and Gattellari were involved in a conventional business relationship. It was submitted that the evidence provided the proper context of what the Crown alleges was the true nature of their relationship.

Submissions of the accused

Although the written submissions of the accused raised issues as to the relevance of the evidence, senior counsel clarified in oral submissions that the accused’s principal position (perhaps with the exception of the evidence of Ms McClymont) was that the evidence should be excluded pursuant to s. 137 of the Act. As I observed at the time, reliance upon s. 137 necessarily involves an acceptance that the evidence is relevant under s. 55.
In respect of each category of the evidence, senior counsel for the accused submitted that the probative value of the evidence was low, and was substantially outweighed by the danger of unfair prejudice. In articulating the nature of that unfair prejudice, senior counsel for the accused relied upon a number of matters.
Firstly, senior counsel relied on the fact that the relationship between the accused and the deceased was of a business, as opposed to a personal, nature. In that regard, senior counsel sought to distinguish a number of authorities in which “relationship evidence” had been found to be relevant and admissible.
Secondly, senior counsel pointed to the fact that on 1 June 2016 the parties had executed a Statement of Agreed Facts pursuant to s. 191 of the Act which extended to some 100 paragraphs and 15 pages, and which detailed a number of objective circumstances in respect of the business relationship that existed between the accused and the deceased. It was submitted that the nature and extent of that relationship, and its deterioration, were evident from those agreed facts. It was submitted that in circumstances where the accused had made lengthy and detailed admissions, there should be some limit placed upon the extent to which the Crown was permitted to lead further evidence of the same subject matter.
Thirdly, senior counsel submitted that the evidence of utterances of the deceased gave rise to a real danger that the jury may, in a case involving allegations of serious violence, draw inappropriate inferences or place too much weight on that evidence.
Fourthly, in respect of the evidence of Ms McClymont, senior counsel submitted that the evidence was not admissible pursuant to s. 66A of the Act because (inter alia) it was not relevant to a fact in issue.
Fifthly, in terms of the evidence sought to be led to establish the relationship between the accused and Gattellari, it was submitted that parts of it were “obviously preposterous” or “inherently unconvincing” such that, even when taken at its highest, it had a low probative value. Further, it was submitted that part of the unfair prejudice arising from this evidence stemmed from the fact that if it were accepted, it would establish the accused having engaged in uncharged acts of criminality. It was submitted that no direction to the jury as to the limited basis on which the evidence was led could possibly overcome the unfair prejudice which would arise.

Consideration

Before turning to the specific evidence, it is appropriate to canvass a number of general principles which apply to a determination of whether it should be admitted.
As senior counsel for the accused appeared to ultimately accept, evidence of the kind sought to be led by the Crown (leaving aside that of Ms McClymont which is in a slightly different category in terms of questions of admissibility) may be admissible as “relationship” evidence: see for example Wilson v The Queen (1970) 123 CLR 334; [1970] ALR 687; Ratten v The Queen [1972] AC 378; R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377. The reliance by senior counsel for the accused upon the fact that the relationship between the accused and the deceased was a business rather than a personal one is to draw a distinction without a difference: Standen v R [2015] NSWCCA 211 at [327] and following.
The essential issue for determination is whether, the evidence in each case should be excluded under s. 137 of the Act. In respect of the evidence of Ms McClymont, there is a preliminary question as to whether the evidence is admissible pursuant to s. 66A and I have considered that separately below.
Section 137 of the Act is in the following terms:

137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

In determining whether evidence should be excluded pursuant to s. 137, the first step is to assess its probative value. The term “probative value” is defined in the Dictionary to the Act as follows:

“probative value” of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

In assessing probative value, I must take the evidence at its highest in terms of the effect that it could have upon the assessment of the probability of a fact in issue. In IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 the plurality said (at [45]):

The use of the term "probative value" and the word "extent" in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.

Their Honours then said (at [47]):

In comparison, the requisite probative value of the evidence is not spelled out in s 137. It requires the "probative value" of the evidence to be weighed against the danger of unfair prejudice to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.

In the present case, the facts in issue include:

whether the cumulative effect of the disputes between the accused and deceased led to a breakdown of their relationship, and an associated desire on the part of the accused to remove the deceased from his life; and

whether the accused was behind the plan to murder the deceased, and intimidate his wife.

Having assessed the probative value of the evidence, I must then consider whether such probative value as it is found to have is substantially outweighed by the danger of unfair prejudice. In this regard, it is important to bear in mind that evidence is not unfairly prejudicial simply because it inculpates an accused, or makes it more likely that he or she will be convicted. The unfair prejudice to which s. 137 is directed is prejudice which is unfair because there is a real risk that it will be misused by the jury in some unfair way, or will be used to make a decision on an improper basis, or to make a decision which is not logically connected with the issues in the case: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]; Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [22]; Standen (supra) at [333].
It is also important to bear in mind that the terms of s. 137, a decision to exclude the evidence does not require that I come to a determination that the evidence will be unfairly prejudicial. The section requires, in order for evidence to be excluded, that I conclude that its probative value is substantially outweigh by the danger that it might be unfairly prejudicial: Seven Network Limited v News Limited (No 8) [2005] FCA 1348 at [16].
With these principles in mind, I turn to consider the specific evidence which is the subject of objection.

The evidence of Mathieson

In pressing the evidence of Mathieson, the Crown relied upon ss. 65(2)(b) and (c) of the Act, which are in the following terms:

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:
…
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) was made in circumstances that make it highly probable that the representation is reliable, or
…

The Crown focused in argument upon the contents of paragraph 24 of Mathieson’s statement in which he makes reference to the deceased having made statements to him to the effect that he (the deceased) wanted to “burn” the accused. On the Crown case this was said in or about June of 2008.
For the purposes of ss. 65(2)(b) and (c), the Crown submitted that the circumstances which made it unlikely that the representation was a fabrication, and the evidence which supported the proposition that the representation was made in circumstances that made it highly probable that it was reliable, were essentially two-fold. Firstly, the Crown pointed to email exchanges between the deceased and Mathieson regarding the sale of the shares in Amazing Loans. The Crown also pointed to the contents of paragraph 21 and following of the agreement under s. 191 of the Act which was made between the parties which, it was said, reflected a deterioration in the relationship between the accused and the deceased.
The announcement prepared for the purposes of the Australian Stock Exchange referred to in paragraph 28 of Mathieson’s statement is also referred to in the email correspondence to which I referred. The email correspondence is consistent with, and corroborates, the contents of paragraph 24 of Mathieson’s statement. I am satisfied, for the purposes of s. 65(2)(c) of the Act, that those circumstances render it highly probable that the representation is reliable.
There is no basis, in my view, on which to exclude the evidence pursuant to s. 137. The deteriorating nature of the relationship between the accused and the deceased is an important part of the Crown case and the evidence to be given by Mathieson is highly probative of that fact. I am unable to conclude that the probative value is outweighed by the danger of unfair prejudice to the accused. Accordingly, the evidence will be admitted.

It should be noted that in reaching this conclusion I have done so specifically by reference to the contents of paragraph 24 of Mathieson’s statement. The Crown indicated an intention to press the evidence contained in paragraphs preceding and succeeding paragraph 24. To a large extent, those paragraphs are expressed in a completely inadmissible form. It may be necessary to revisit the admissibility of those parts of Mathieson’s evidence once the Crown case has commenced.

The evidence of the deceased’s wife

I have previously set out paragraphs 9 to 11 of the statement of the deceased’s wife (at [12] above).
As to the first of the specific matters referred to at [11](i) above, the evidence in my view is plainly inadmissible. The deceased’s wife purports to give evidence that the deceased was “not comfortable” with the arrangement under which the accused had acted as his surety in respect of a bail undertaking. The only identified source of the lack of comfort which is disclosed in the statement is that according to the deceased’s wife, the deceased was “becoming frustrated” with the accused. That assertion, of itself, is inadmissible in that form. The source of the deceased’s frustration appears to have been alleged acts on the part of the accused which are said to have amounted to a fraud. The basis upon which the deceased took that view is not clear. Even if this evidence was admissible it is highly prejudicial, to the point where any slight probative value that it might have is substantially outweighed by the danger of unfair prejudice.
As far as the second matter is concerned the evidence is similarly inadmissible. It amounts to little more than evidence of an expression of an opinion of the deceased about the activities of the accused. There is nothing which would satisfy the requirements of ss. 65(2)(b) or (c) of the Act. Even if such evidence was admissible, it’s obviously prejudicial nature is such that it ought be excluded.

The evidence of Ms McClymont

I have previously set out (at [13] above) the specific evidence of Ms McClymont upon which the Crown wishes to rely. In seeking to lead this evidence the Crown relied upon s. 66A of the Act which is in the following terms:

66A Exception: contemporaneous statements about a person’s health etc
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.

In support of the admissibility of the evidence, the Crown relied upon the decision in Serratore (supra) where Dunford J (with whom the other members of the Court agreed) concluded (at [29]) that statements made by the deceased to her mother and various girlfriends were admissible as an exception to the hearsay rule pursuant to s. 72 of the Act (which was the predecessor to s. 66A). However, the statements which were found to be admissible in that case were of an entirely different character. They included statements made by the deceased to the effect that she was in relationship with the appellant, that she was intending to terminate the relationship, and that she was intending to meet the appellant for the mutual return of mementos of the relationship. The statements of the deceased in the present case to Ms McClymont are far removed from such circumstances. In my view, the evidence in the present case does not fall within the terms of s. 66A. The evidence amounts, in effect, to the expression of an opinion by the deceased as to what he thought the accused intended to do.
I am fortified in these views by the observations of Gray J in R v Hillier (2004) 154 ACTR 46; [2004] ACTSC 81 at [25]:

25. … I do not regard the expressions of fear and concern for her safety expressed by the deceased to the various witnesses as having the probative value of negativing innocent contact for which the prosecution contends or in any other way tending to prove that the accused killed the deceased or that he acted toward her with a certain intent (see Gleeson CJ in Frawley at 223). Whilst s 72 of the Evidence Act might permit evidence to be given of the deceased's fear of the accused as recounted to other persons, that only applies `when the state of mind evidenced by the statement is either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial' (R v Blastland[1986] 1 AC 41 at 54).

In the present case, the state of mind of the deceased is not a fact in issue, nor is it relevant to a fact in issue. For these reasons, that part of Ms McClymont’s evidence identified by the Crown will not be admitted.

Evidence of the relationship between the accused and Gattellari

Even though the trial has not yet commenced, it is obvious that there will be a significant attack on the credibility of Gattellari, who has been sentenced for his part in the deceased’s murder, and whose sentence was significantly reduced on account of his assistance. It is the Crown case that the accused recruited Gattellari for the purposes of killing the deceased and intimidating his wife. The nature and extent of the relationship between the accused and Gattellari in those circumstances is clearly relevant to, and probative of, a number of facts in issue, and the jury will be directed as to the basis upon which the evidence is led, and the use to which it can be put.
The one exception is the evidence concerning the “debt collection” which was allegedly carried out by Gattellari at the accused’s request. As I have noted in [19] above, the Crown will seek to adduce evidence that these debt collecting activities involved the alleged communication of threats on behalf of the accused.
The fact that the accused engaged Gattellari to collect debts on his behalf is probative of the nature and extent of their relationship at material times, and is therefore admissible. There is, in my view, no danger of unfair prejudice to the accused if evidence is led in that form. However, such a danger does arise if the evidence includes reference to threats emanating from the accused to other persons. Given the nature of the charges against the accused, it is not difficult to envisage that if such evidence were admitted there may be propensity for the jury to engage in a process of impermissible reasoning, namely that because the accused was authorising Gattellari to engage in threatening behaviour on his behalf, he is more likely to have committed one or both of the offences alleged against him. I am satisfied that to the extent that this evidence involves allegations of threats, it should be excluded pursuant to s. 137 of the Act.

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Decision last updated: 24 April 2018

Medium Neutral Citation:	R v Medich (No 8) [2016] NSWSC 1713
Hearing dates:	18 October 2016
Date of orders:	09 December 2016
Decision date:	09 December 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [48];[52];[56];[59]
Catchwords:	CRIMINAL LAW – Evidence – Where the Crown sought to lead evidence of the relationship between the accused and the deceased – Where some of the evidence was constituted by representations of the deceased – Whether evidence admissible – Evidence admitted CRIMINAL LAW – Evidence – Where the Crown sought to lead evidence of the relationship between the accused and the deceased – Where Crown relied upon statements made by the deceased to his wife – Evidence not admitted CRIMINAL LAW – Evidence – Where the Crown sought to lead evidence of the relationship between the accused and the deceased – Where Crown relied upon statements made by the deceased to a journalist shortly before his death – Whether the statement of the deceased were statements of his feelings, intentions, knowledge and state of mind – Where statements amounted to an expression of an opinion by the deceased as to the intentions of the accused – Evidence not relevant to any fact in issue – Evidence excluded CRIMINAL LAW – Evidence – Where the Crown sought to lead evidence of the relationship between the accused and the principal Crown witness – Where evidence included evidence of the witness and others threatening people on behalf of the accused – Evidence of threats unfairly prejudicial to the accused and excluded – Balance of the evidence admitted
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Hillier (2004) 154 ACTR 46; [2004] ACTSC 81 R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377 Ratten v The Queen [1972] AC 378 Seven Network Limited v News Limited (No 8) [2005] FCA 1348 Standen v R [2015] NSWCCA 211 Wilson v The Queen (1970) 123 CLR 334; [1970] ALR 687
Category:	Principal judgment
Parties:	Regina – Crown Ronald Edward Medich – Accused
Representation:	Counsel: G O’Rourke SC and S Harris – Crown WC Terracini SC, M Curry and S Schaudin – Accused Solicitors: Director of Public Prosecutions NSW – Crown Colin Daley Quinn Solicitors – Accused
File Number(s):	2010/356916
Publication restriction:	Nil