R v Ronald Edward Medich (No. 14)

[2017] NSWSC 80

Supreme Court

New South Wales

Medium Neutral Citation:	R v Ronald Edward Medich (No. 14) [2017] NSWSC 80
Hearing dates:	14 February 2017
Date of orders:	14 February 2017
Decision date:	14 February 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [12]
Catchwords:	CRIMINAL LAW – Evidence – Where evidence elicited in cross-examination was adverse to the accused – Where Crown sought to re-examine the witness in respect of that evidence – Whether the probative value of the evidence sought to be elicited in re-examination was outweighed by the danger of unfair prejudice to the accused – Where the effect of the proposed re-examination was to do little more than re-state the evidence already given - Re-examination not permitted
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Regina – Crown Ronald Edward Medich – Accused
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)

1. In the course of proceedings yesterday the witness Fortunato Gattellari (“Gattellari”) was cross-examined about money said to have been provided to him by the accused, to be used to pay those who had been engaged to kill the deceased, Michael McGurk. The Crown sought to re-examine Gattellari in respect of a particular part of that evidence. Having heard argument in relation to that issue, I refused the proposed re-examination and indicated that so as not to delay the completion of Gattellari’s evidence, I would give my reasons at a later time. Those reasons now follow.

2. The issue arose, as I have noted, in the cross-examination of Gattellari as to moneys provided to him by the accused to pay those who had been engaged to murder the deceased. The effect of part of that cross-examination was that there was a discrepancy between the money that Gattellari said that he received from the accused, and that which had been expended for the purposes of the deceased's murder.

3. Gattellari was asked (commencing at T759 L28):

“Q. How much did you receive from Mr Medich for that purpose?

A. Mr Medich gave me $500,000.

Q. What about for the intimidation of Mrs McGurk, that adds up to $600,000, doesn't it?

A. Yes, but Mr Medich, as I said before, over and over again, had many, many jobs he needed done and this never stopped. I picked up large sums of cash from Mr Medich on a number of occasions for other events, so you know--”

4. Notwithstanding Gattellari’s reference in the last answer to "other events" senior counsel for the accused returned to the subject, in the context of evidence given by Gattellari at the committal hearing. Having taken him to extracts of the evidence that he gave on that occasion, Gattellari was then asked the following (commencing at T777 L31):

“Q. And you make mention in that transcript, and you have in this court, that you passed on moneys for other matters; what are they, if they are not in relation to the moneys to do with the murder?

A. Well, there were a number of other people that Mr Medich was very unsatisfied with, that he - that he wanted to be spoken to and sorted out.

Q. Right, and so far as those persons are concerned, were they in relation to loans?

A. I have no idea what they were in relation to.

Q. And those moneys obviously were to be used by you or by Mr Shipley?

A. What moneys are you talking about?”

(emphasis added)

5. Gattellari was then asked (at T778 L1):

“Q. How much did you give Shipley in relation to these other matters?

A. Whatever I had spare that wasn't used for those matters; I can't remember how much it was.”

6. In light of Gattellari's answer in the bolded passage set out in [4], the Crown sought to re-examine him. Initially, the Crown's position (as articulated at T800 L27) was that Gattellari would be asked who the “other people” were and how they were to be “sorted out”. That position was slightly modified (at T803 L29), where it was indicated that the Crown would seek to elicit from Gattellari the fact that there were specific jobs discussed and allocated.

7. The Crown's position was then modified again, the Crown indicating (at T805 L39) that the sole question that would be asked in re-examination would be in the following terms:

“In relation to that evidence that you have given in relation to the other matters, did that involve paying people to approach those people that the accused was unsatisfied with?”

8. Senior Counsel for the accused objected to the proposed re-examination. He accepted that it was relevant. He also accepted that it arose squarely from the answers given in cross-examination, and was thus within the terms of s. 39 of the Evidence Act1995 (NSW) (“the Act”). However, he submitted that in all of the circumstances the proposed re-examination attracted the provisions of s. 137 of the Act, and that its probative value was outweighed by the danger of unfair prejudice to the accused. Senior Counsel submitted that the probative value of the evidence was limited, and that if the re-examination were permitted, there was clear danger of the jury engaging in an impermissible process of reasoning.

9. The Crown submitted that it would be unfair to allow the issue to be left, as it were, “hanging”, and that it was entitled to “clarify” that money which had been advanced to Gattellari had been expended for other (not dissimilar) purposes to those for which the money was expended in respect of the deceased’s murder.

10. The effect of s. 137 of the Act is to mandate the exclusion of evidence if I am satisfied that its probative value is outweighed by the danger of unfair prejudice to an accused. The fact that the evidence giving rise to this issue was elicited in cross-examination does not provide a warrant for it to be further pursued in re-examination. In my view, the probative value of the evidence (given the Crown’s final position as set out at [7]) was low. Assuming Gattellari were to answer “yes” to the proposed question, the proposition that money was paid to other people to approach persons that the accused was not satisfied with was already plainly evident, particularly from the bolded answer extracted in [4] above. In those circumstances, no clarification of the fact that the money (to use the Crown's term) "went to other things" was required. The question sought to be put by the Crown, had it been allowed, would have done little more than restate the effect of the evidence which had already been given.

11. Moreover, the danger of unfair prejudice to the accused if the re-examination were permitted was, in my view, significant, and would have given rise to a real danger of the jury engaging in an impermissible process of reasoning. In particular there was, in my view, a real danger that if the evidence were simply re-stated (that being the effect of the expected answer to the question that the Crown sought to put) the jury would attach more weight to the evidence than was warranted. It was also not difficult to envisage a danger that if the evidence was accepted, the jury would reason that because the accused wanted other people “sorted out”, and because he had paid money to Gattellari for the purposes of putting this into effect, he had adopted the very same approach in his dealings with the deceased. The impermissibility of that line of reasoning will be self-evident.

12. For those reasons I did not permit the re-examination.

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Decision last updated: 24 April 2018