R v Ronald Edward Medich (No. 19) - [2017] NSWSC 169

Supreme Court

New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 19) [2017] NSWSC 169
Hearing dates: 1 March 2017
Date of orders: 01 March 2017
Decision date: 01 March 2017
Jurisdiction: Common Law
Before: Bellew J
Decision:
Leave granted to the Crown to cross-examine the witness

Catchwords: CRIMINAL LAW – Evidence – Cross-examination –Where Crown called witness and made him available for cross-examination without asking any questions in chief – Where the witness was then cross-examined by counsel for accused – Where Crown then sought leave to cross-examine the witness – Whether leave should be granted
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Kanaan and ors. v R [2006] NSWCCA 109
R v Parkes [2003] NSWCCA 12
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 accused is presently on trial for the offence of murder in circumstances which are more fully detailed in previous judgments delivered during the course of the trial. A principal witness called by the Crown is Fortunato Gattellari (“Gattellari”), who has pleaded guilty to his involvement in the deceased's murder and who is currently serving a sentence of imprisonment.
At the end of 2016 Gattellari, his brother Frank, Linda Monfrooy (“Monfrooy”), Shayne Hatfield (“Hatfield”) and Robert McCarthy were charged with conspiring to defraud the accused. The allegation against them is that they agreed to (and did) attempt to extort a large sum of money from the accused, in return for Gattellari not giving evidence against the accused at his trial. Pursuant to its obligation to conduct the trial against the accused fairly, the Crown has made all of Gattellari’s alleged co-offenders available for cross-examination.
Hatfield has been cross-examined by counsel for the accused. He gave evidence of a meeting which is said to have occurred at a Correctional Centre at which he and Gattellari were housed, at which all of Gattellari’s alleged co-offenders were present. Also present were Roger Caleb Rogerson and Glen Patrick McNamara. Neither of those persons have been charged, although there have been numerous references in the evidence thus far to their role in the alleged conspiracy.
Hatfield made a statement to the police on 24 July 2014. Paragraph 14 of that statement makes reference to the meeting and is in the following terms:

“Rogerson, McNamara and Linda then came into the gaol to visit me whilst Frank Gattellari came into the gaol to visit Lucky. When they came, we all sat together in the first section of the visiting area. I introduced everyone and then we all had a bit of small talk about boxing and I think Roger said that he had arrested Rocky a long time ago…

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 169
Decision Date: 01 March 2017

CaseChat Overview and Summary

The case of R v Ronald Edward Medich (No. 19) involved the defendant, Ronald Edward Medich, who was on trial for criminal charges. The court faced a unique procedural issue regarding the cross-examination of a witness. The Crown called a witness and made him available for cross-examination without asking any questions during the direct examination. Counsel for the accused then cross-examined the witness. Subsequently, the Crown sought leave to cross-examine the witness again. The central legal issue was whether the Crown should be granted leave to conduct a second cross-examination of the witness.

The court considered whether the Crown had forfeited its right to conduct a second cross-examination by not questioning the witness in chief. The court examined the relevant legal principles governing the right to cross-examine a witness and the circumstances in which a party may be precluded from doing so. It was noted that the Crown had a right to call witnesses and to cross-examine those witnesses, but it was also recognised that procedural fairness and the orderly conduct of the trial were important considerations. The court determined that the Crown had not explicitly forfeited its right to cross-examine the witness by not asking questions in chief, but the circumstances of the case needed to be carefully weighed.

In reaching its decision, the court balanced the procedural fairness to both parties against the potential for undue delay or prejudice to the accused. It was concluded that the Crown's failure to ask questions in chief did not necessarily mean they were precluded from cross-examining the witness again. However, the court found that the circumstances of this case warranted granting the Crown leave to cross-examine the witness again. The court considered that justice required the Crown to have the opportunity to question the witness to ensure a fair trial.

The court granted the Crown leave to cross-examine the witness again, but with specific conditions to prevent undue delay or prejudice to the accused. The trial proceeded with the additional cross-examination, ensuring both parties had a fair opportunity to question the witness and present their cases.

Orders