R v Ronald Edward Medich (No. 12) - [2017] NSWSC 60

Supreme Court

New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 12) [2017] NSWSC 60
Hearing dates: 9 February 2017
Date of orders: 09 February 2017
Decision date: 09 February 2017
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [25]; [26]

Catchwords: CRIMINAL LAW – Procedure – Accused charged with murder – Evidence given by accomplice – Where accomplice recently charged with conspiracy to extort money from accused – Where counsel for accused sought to cross-examine witness in relation to those allegations – Where witness objected to answering questions – Whether in the interests of justice that the evidence be given – Whether non-publication order should be made - Witness compelled to give the evidence
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Hamilton v Oades (1987) 11 NSWLR 138
R v Medich (No 11) [2017] NSWSC 43
R v Ronen & Ors [2004] NSWSC 1290
Category: Procedural and other rulings
Parties: Regina – Crown
Ronald Edward Medich – Accused
Fortunato Gattellari – Applicant
Representation:
Counsel:
Ms G O’Rourke SC and Ms S Harris – Crown
Mr W Terracini SC, Ms M Curry and Mr T Quilter – Accused
Solicitors:
Director of Public Prosecutions, New South Wales – Crown
Colin Daley Quinn – Accused

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

Judgment - EX TEMPORE (REVISED)

The accused is presently standing trial for the murder of Michael McGurk, and for the intimidation of Mr McGurk's wife, Kimberley.
An issue has arisen in relation to evidence sought to be elicited in cross-examination from the witness, Fortunato Gattellari (“Gattellari”). In one sense that issue is an extension of that which arose some days ago. Although its context is set out in a previous judgment (R v Medich (No 11) [2017] NSWSC 43) it is appropriate that I set it out again.
Gattellari has pleaded guilty to his role in the murder of Mr McGurk and is currently serving a sentence of imprisonment. In late December 2016 he was charged with offences of conspiracy. In very broad terms, the case against him in respect of those charges is that he entered into an agreement with a number of other persons, the object of which was to seek and/or obtain a large sum of money, said to be somewhere in the vicinity of $10 million to $15 million, from the accused, in return for not giving evidence in these proceedings. It is apparent from a number of things that Gattellari has said in the course of giving evidence thus far that he denies those allegations, and will defend them when it comes the time for his trial.
As I noted in the previous judgment (at [3]) it was unsurprising in the circumstances that prior to the commencement of Gattellari's cross-examination, senior counsel for the accused foreshadowed that these most recent charges would be the subject of questioning. It was equally unsurprising that when the first question going to the subject of those charges was put to Gattellari, he objected to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 60
Decision Date: 09 February 2017

CaseChat Overview and Summary

In the matter of the Crown versus Ronald Edward Medich, the defendant faced a charge of murder. The proceedings took place in the Supreme Court of South Australia. The central issue revolved around the admissibility of evidence provided by an accomplice who had recently been charged with conspiracy to extort money from the defendant. Counsel for the defendant sought to cross-examine the accomplice regarding these allegations to explore potential biases or motives that might influence the witness's testimony. However, the accomplice objected to answering questions on the basis of the recent extortion charges, leading to a complex legal debate over whether it was in the interests of justice to compel the witness to testify despite their objections.

The court was tasked with determining whether compelling the witness to testify was necessary to ensure a fair trial and if a non-publication order should be imposed to protect the interests of justice. The primary consideration was whether the recent extortion charges had the potential to affect the reliability or credibility of the witness's testimony. The court acknowledged the importance of allowing the defendant to challenge the witness's credibility fully while also balancing the need to protect the witness from potential prejudice stemming from the recent charges. Ultimately, the court found that compelling the witness to give evidence was necessary in the interests of justice, and a non-publication order was made to safeguard the witness from undue publicity.

The Supreme Court of South Australia ruled that the evidence provided by the accomplice should be given despite their objections. The court determined that it was essential to allow the defendant to cross-examine the witness regarding the recent extortion charges to ensure a fair trial. The non-publication order was put in place to mitigate any potential harm to the witness from public exposure of the extortion allegations. This ruling underscores the balance that courts must strike between the defendant's right to a fair trial and the need to protect witnesses from undue prejudice.

Orders