R v Ronald Edward Medich (No. 11)

[2017] NSWSC 43

Supreme Court

New South Wales

Medium Neutral Citation:	R v Ronald Edward Medich (No. 11) [2017] NSWSC 43
Hearing dates:	7 February 2017
Date of orders:	07 February 2017
Decision date:	07 February 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. The order made on 6 February 2017 preventing publication of evidence given in cross-examination by Gattellari is discharged.
Catchwords:	CRIMINAL LAW – Procedure – Accused charged with murder – Where witness giving evidence for the Crown against the accused had previously pleaded guilty to his role in the murder and had been sentenced – Where witness had been charged shortly before the commencement of the accused’s trial with conspiracy to extort money from the accused in return for not giving evidence – Where witness objected to questions going to those charges but then willingly answered the questions with the benefit of a certificate to be issued pursuant to s. 128 of the Evidence Act – Where application was then made on behalf of the witness that his evidence in cross-examination in relation to the most recent charges not be published – Whether such an order necessary to prevent prejudice to the proper administration of justice – Order not necessary – Interim order discharged
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Fairfax Digital Australia & New Zealand Pty Ltd & Ors v Ibrahim [2012] NSWCCA 125; (2012) 293 ALR 384
Category:	Procedural and other rulings
Parties:	Regina – Crown Ronald Medich – Accused Fortunato Gattellari – Applicant Nationwide News Pty Limited - Intervenor
Representation:	Counsel: Ms G O’Rourke SC and Ms J Harris – Crown Mr W Terracini SC, Ms M Curry and Mr T Quilter – Accused Mr P Godkin - Applicant Ms L Mullins (Solicitor) - Intervenor   Solicitors: Director of Public Prosecutions, New South Wales – Crown Colin Daley Quinn – Accused Larina Mullins, Senior Litigation Counsel, Nationwide News Pty Limited – Intervenor
File Number(s):	2010/356916
Publication restriction:	Nil

Judgment - EX TEMPORE (REVISED)

INTRODUCTION

1. The accused Ronald Edward Medich is standing trial for (inter alia) the murder of Michael McGurk in September of 2009.

2. The Crown's principal witness, Fortunato Gattellari (“Gattellari”) is currently giving evidence. His cross-examination commenced yesterday. Gattellari has pleaded guilty to his role in the murder of Mr McGurk and is currently serving a sentence. It is common ground that when sentenced he received a discount of 60 per cent to reflect his plea and his assistance to the authorities.

3. In late December 2016 Gattellari was charged with further offences of conspiracy. The case against him is that he entered into an agreement with a number of others, the object of which was to seek a payment of a large sum of money, said to be somewhere between $10 and $15 million, from the accused, in return for not giving evidence in these proceedings. Gattellari has indicated that the allegations are denied and that he will be entering a plea of not guilty to the charges. Unsurprisingly, senior counsel for the accused foreshadowed prior to the commencement of Gattellari’s cross-examination that these matters would be the subject of questions. Equally unsurprisingly, when the first question going to the substance of those allegations was put to Gattellari, he objected to answering it. Prior to taking that position, Gattellari had received the benefit of legal advice, provided on a pro bono basis, by Mr Godkin, Barrister.

4. When the objection was taken, I explained the effect of s. 128 of the Evidence Act1995 (NSW) (“the EA”) to Gattellari. He then informed me that he would answer the questions put to him about his most recent charges willingly. I informed him that at the conclusion of his evidence I would provide him with a certificate under s. 128, the nature of which I also explained.

5. At the time of making that determination Mr Godkin announced an appearance on behalf of Gattellari. As I pointed out at the time, a witness in proceedings does not, as such, have the right to be represented by counsel. However in all of the circumstances, no issue being raised by either of the parties in the trial, I gave Mr Godkin the opportunity to be heard. Mr Godkin then made application for a non-publication order in respect of the entirety of that part of Gattellari's evidence in cross-examination touching upon the charges most recently laid against him. In short, Mr Godkin submitted that there was a clear danger of unfair prejudice being visited upon Gattellari in the absence of such an order being made. He submitted that such danger was substantial, and that "the risk of trial by media was not protected" by the issue of the certificate under s. 128. The Crown did not oppose, and indeed actively supported, the application. Senior Counsel for the accused opposed it.

6. Whilst I do not say this by way of criticism, the fact is that I was not given any prior indication that such an order would be sought. Further, when the application was made, I was not referred in any real detail to the principles applicable to such an application, nor to any authorities in which such principles have been discussed. I observed at the time that it is never desirable to deal with matters of such substance “on the run”. I also expressed a tentative view that a decision as to whether or not to grant the application may be informed by the nature and extent of the cross-examination which was to take place. Accordingly in those circumstances, and in an effort to protect the position of all parties, I made an order preventing the publication of the evidence. I indicated that I would hear full argument on the issue when the proceedings resumed this morning. In the intervening period my Associate was contacted by Ms Mullins, the Senior Litigation Counsel for Nationwide News Pty Limited, who indicated that she would seek leave to intervene and appear on the application. That leave was granted. For reasons to which I will come, Ms Mullins opposed the continuation of the order, and sought its discharge.

7. The application has been made pursuant to s. 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”) which is in the following terms:

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice…”

8. In support of his application Mr Godkin submitted that although the principle of open justice was important, it was not absolute. He submitted that in determining whether the order was necessary to prevent prejudice to the proper administration of justice, it was necessary to have proper regard to the specific circumstances of the case. He submitted that if publication of the evidence were allowed, Gattellari’s right to a fair trial would be prejudiced. He submitted, in effect, that it was one thing to air the Crown's allegations publicly, but that it was quite another to publish Gattellari's responses to them.

9. Mr Godkin further submitted that although the certificate to be issued to Gattellari under s. 128 would provide him with some protection, it did not extend to protecting him against the use of his evidence by jurors in his trial who may learn of it by (for example) accessing the internet. He submitted that publication of the evidence gave rise to the risk of it being used against Gattellari, albeit in an indirect way.

10. In advancing these submissions Mr Godkin referred me to the decision of the Court of Criminal Appeal in Fairfax Digital Australia & New Zealand Pty Ltd & Ors v Ibrahim [2012] NSWCCA 125; (2012) 293 ALR 384. He referred, in particular, to the observations of Basten JA at [45]-[47] as to the meaning of the word "necessary" as it is used in s 8(1)(a) of the Act.

11. The Crown, as I have said, supported the application. The Crown submitted that there was a distinct possibility that publication of the evidence would undermine the effect of the certificate to be issued to Gattellari under s. 128 of the EA. The Crown also raised the possibility that Gattellari may wish to apply for a permanent stay of his trial, based upon the publication of the evidence.

12. Ms Mullins opposed the continuation of the order and sought that it be discharged. Whilst she appeared to accept that publication of the evidence may cause some prima facie prejudice to Gattellari, she submitted that any such prejudice was properly addressed by two particular factors.

13. The first factor was what Ms Mullins referred to as the "fade effect". She submitted that in circumstances where Gattellari could not expect to have a trial for some considerable period of time, any prejudicial effect which might arise as a consequence of the publication of the evidence would fade over time, to the point where it effectively became non-existent. She submitted that in a practical sense, and absent the order being continued, the evidence would be published, that it would remain “newsworthy” for a short period of time, and would then be replaced by the reporting of matters which were more current.

14. The second factor was the direction which Ms Mullins submitted would necessarily be given to the jury in Gattellari’s trial, namely that the jury disregard any prior media reporting. Ms Mullins also pointed out that the terms of the oath or affirmation taken by members of a jury requires each of them to return a verdict according to the evidence. She submitted that in those circumstances, Gattellari's position was properly protected and that the continuation of the order was not necessary.

15. Senior Counsel for the accused also opposed the continuation of the order. He referred to what he described as the "time-honoured principle" of open justice, and submitted that in all of the circumstances the continuation of the order was not necessary. He submitted, in particular, that that the delay which could be expected to be occasioned before Gattellari came to trial was such that any knowledge of his evidence which was acquired by any potential juror would fade over time. He too emphasised the terms of the direction to which Ms Mullins had referred.

16. Senior counsel also placed some emphasis on the fact that it could be anticipated that at some point, at least the Crown's allegations against Gattellari in respect of these most recent charges would be made public. However as I pointed out, that is only part of the equation. The more significant aspect of publication of the evidence is not the Crown’s allegations, but Gattellari's responses to them.

17. I have already made reference to the fact that the application is made under s 8(1)(a) of the Act. That section confers a discretion to make an order if the Court comes to the conclusion that such order is necessary to prevent prejudice to the proper administration of justice. The meaning of the word "necessary" was considered by Basten JA in Fairfax Digital (supra). His Honour observed (at [45]) that the word "necessary" can have shades of meaning, and is not a word of a fixed character. His Honour went on to observe that its meaning will depend upon the context in which it is used.

18. The other significant provision of the Act is s. 6. Under that section, I must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

19. In John Fairfax Publications Pty Ltd v The District Court of New South Wales & Ors [2004] NSWCA 324; (2004) 61 NSWLR 344, Spigelman CJ (commencing at [18]) made a number of observations regarding that principle. His Honour made specific reference to the fact that the principle is one of the most fundamental aspects of the system of justice in this country, and that the conduct of proceedings in public is an essential quality of an Australian Court of justice. He also observed that exceptions to the principle are few, and are strictly defined. He observed that the entitlement of the media to report on Court proceedings is a corollary of the right of access to the Court by members of the public, and that nothing should be done to discourage fair and accurate reporting of the proceedings. Finally, his Honour observed that from time to time courts do make orders that some aspects of court proceedings not be the subject of publication, but that any such order must, in light of the principle of open justice, be regarded as exceptional.

20. Spigelman CJ’s observations were made in the context of an order which had been made by a judge of the District Court for the benefit of an accused who was then facing trial. The circumstances of the present case are slightly different, in the sense that the order is sought, not to protect an accused, but to protect a witness called by the Crown who is likely to come to trial at some stage in the future. However that distinction does not render the principles set out by Spigelman CJ of any less force or significance. Moreover, their importance is reflected in s. 6 of the Act, to which I have already referred. That said, s. 6 must not operate in a way which impedes the making of an order if one or more of the grounds set out in s. 8 are made out: Fairfax Digital (supra) per Bathurst CJ at [9].

21. Bearing in mind these principles, and having regard to the submissions put to me by the parties, I have come to the conclusion that the order that I made yesterday should be discharged for a number of reasons.

22. Gattellari has only recently been charged. The proceedings against him are in their embryonic stages in the Local Court. There are a number of other parties who have also been charged with him. Experience shows that multiplicity of parties in criminal proceedings invariably has the effect of slowing, rather than hastening, their progress. In all of these circumstances, and whilst it is necessarily in the nature of an educated guess, it seems highly unlikely that Gattellari will come to trial on the present charges for approximately two years. There is considerable force in the submission put to me by Ms Mullins that, given this expected lapse of time, there would necessarily be a “fade effect” of the kind to which she referred, in circumstances where it is most unlikely that the evidence will be the subject of any ongoing publication.

23. Even if the publication of the evidence remains on the internet, that is an issue which can be appropriately addressed at Gattellari’s trial. At the commencement of any criminal trial, the presiding Judge directs the jury to ignore media reporting, and to refrain from making any outside enquiries, through the internet or otherwise, in relation to any aspect of the trial. Invariably, it is pointed out to the jury that a breach of such a direction could amount to the commission of a criminal offence, punishable by up to two years imprisonment. It can be readily anticipated that directions in these terms will be given at the commencement of Gattellari's trial, whenever that may be. If for some reason it were overlooked, it could be reasonably expected that any responsible counsel briefed to appear for Gattellari would remind the Judge of the necessity to give such directions.

24. Any breach of such directions, apart from the potential to amount to a criminal offence, would amount to a breach of the oath or affirmation taken by any juror at the commencement of that trial. Moreover, a criminal trial on indictment proceeds on the assumption that jurors are true to their individual oath or affirmation, that they return a verdict according to the evidence, and that they act in accordance with directions given to them by the Judge: Gilbert v R [2000] HCA 15; (2000) CLR 414 at [31] per McHugh J.

25. In addition, it may also be open to those representing Gattellari at his trial to make an application for further orders, including an order that the name of Gattellari not be published in Court lists, and that any report of the evidence then remaining (for example) on the internet be taken down.

26. It is also significant that Gattellari will be issued with a certificate under s. 128 of the EA. Submissions were put to me that the protection afforded Gattellari by virtue of that certificate would be circumvented, if not completely flouted, by publication of the evidence. It was put that at the very least, publication of the evidence would diminish the effect of the certificate. In all of the circumstances I do not accept any of this to be the case. The certificate, when it is issued, will prevent the evidence being used against Gattellari. For all of the reasons that I have given the publication of the evidence does not circumvent the terms of that certificate nor, in my view, would it dilute its effect. Even if it is published, the evidence cannot be used against Gattellari by virtue of the certificate. Any attempted “derivative use” of the evidence by a member of the jury would be completely inconsistent with that member’s oath or affirmation, and would, in any event, be appropriately addressed by the expected directions of the trial Judge. .

27. For all of these reasons I make the following order:

1. The order made on 6 February 2017 preventing publication of evidence given in cross-examination by Gattellari is discharged.

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Decision last updated: 24 April 2018