R v Ronald Edward Medich (No. 17) - [2017] NSWSC 170

Supreme Court

New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 17) [2017] NSWSC 170
Hearing dates: 24 February 2017
Date of orders: 24 February 2017
Decision date: 24 February 2017
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [29]

Catchwords: CRIMINAL LAW – Evidence – Where witness gave evidence at committal hearing – Where witness now unavailable – Whether Crown should be permitted to rely upon evidence given at committal – Whether accused had a reasonable opportunity to cross-examine the witness at committal – Whether the probative value of the evidence was outweighed by danger of unfair prejudice to accused –Evidence admitted
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Director of Public Prosecutions v BB [2010] VSCA 211
R v Stackelroth (1996) 86 A Crim R 438
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)

The Crown seeks to call evidence from Paul Mathieson (“Mathieson”) in its case. Mathieson is the founder of a company called Amazing Loans. At one point he entered into an agreement with the accused, pursuant to which the accused provided a loan facility in a sum of $25 million to the company, which was publicly listed. Mathieson's evidence is that his relationship with the accused subsequently soured.
The evidence sought to be led from Mathieson by the Crown will include evidence of representations said to have been made to him by the deceased, in the course of which the deceased is said to have expressed his general dislike of the accused. In particular, the Crown will seek to lead evidence from Mathieson of a meeting that he had with the deceased, in the course of which the deceased put to him a proposal, the effect of which was to damage the accused. This evidence is relied upon by the Crown to establish the deterioration in the relationship between the deceased and the accused. Mathieson’s evidence will also include statements made to him by the accused regarding the deceased.
Mathieson gave evidence at the committal proceedings in 2013 and was cross-examined. Although the position is not entirely clear, it appears that he now lives outside Australia and divides his time between two different countries. The Crown indicated in the course of previous discussions about his evidence that he is generally uncooperative. That is consistent with some of the statements he made in the course of giving evidence in the committal proceedings, which reflect a generally difficult approach.
Earlier this week the police became aware that Mathieson was in Australia. At that time I was asked to issue an urgent subpoena seeking his attendance before the court today, in circumstances…

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 170
Decision Date: 24 February 2017

CaseChat Overview and Summary

The case before the court was R v Ronald Edward Medich (No. 17), where the accused faced criminal charges. The central issue was the admissibility of evidence provided by a witness who was now unavailable. The Crown sought to rely on this witness's testimony from a committal hearing. The accused argued that the evidence should not be admitted because they had not had a reasonable opportunity to cross-examine the witness at the committal hearing, and the probative value of the evidence was outweighed by the danger of unfair prejudice.

The court was required to determine whether the witness's evidence from the committal hearing should be admitted, given the accused's inability to cross-examine the witness in that context. The court also had to assess whether the probative value of the evidence was outweighed by the potential for unfair prejudice to the accused. The legal principles surrounding the right to cross-examination and the balance between probative value and prejudicial effect were central to the court's decision.

In reaching its decision, the court considered the circumstances under which the witness's evidence was originally given and whether the accused had a reasonable opportunity to cross-examine the witness at that time. The court also weighed the probative value of the evidence against the potential for unfair prejudice to the accused. Ultimately, the court found that the probative value of the evidence outweighed the danger of unfair prejudice and allowed the Crown to rely on the witness's evidence from the committal hearing.

The court's final orders permitted the Crown to use the witness's evidence from the committal hearing, thereby allowing the trial to proceed with the available evidence. The court's reasoning focused on the balance between the accused's right to a fair trial and the need to ensure that the probative value of the evidence was not unduly compromised by the unavailability of the witness.

Orders