R v Ronald Edward Medich (No. 22)

[2017] NSWSC 248

Supreme Court

New South Wales

Medium Neutral Citation:	R v Ronald Edward Medich (No. 22) [2017] NSWSC 248
Hearing dates:	14 March 2017
Date of orders:	14 March 2017
Decision date:	14 March 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [11]
Catchwords:	CRIMINAL LAW – Evidence – Conversation between accused and son about a newspaper article pertaining to the deceased’s murder – Whether relevant
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Zaknic v Svelte Corporation Pty Ltd (1995) 61 FCR 171
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. The accused has called his son, Peter Medich, as a witness in the defence case. In the course of the evidence-in-chief of Mr Medich, senior counsel for the accused sought to tender evidence of a recorded conversation between the accused and his son which took place on 16 October 2010. The Crown objected to that conversation being admitted.

2. It is apparent that for a significant time prior to the accused's arrest and as part of the investigation which was then ongoing, police obtained a number of warrants authorising them to intercept various telephone services. It was pursuant to one of those warrants that the conversation in question was recorded at 10.03pm on 16 October 2010. After what might be described as an initial exchange of pleasantries, the following dialogue took place between the accused and his son:

PETER MEDICH: Oh look you got a fucking stunning ah message in the paper today. Pretty good one actually.

ACCUSED: About what?

PETER MEDICH: Kate.

ACCUSED: About what?

PETER MEDICH: Written, written by Kate McClymont saying pretty much that you've got nothing to do with it and the Police know that you've got nothing to do with it.

ACCUSED: Is that right?

PETER MEDICH: Yep.

ACCUSED: Well I haven't got anything to do with it so why would they say that I've got something to do with it.

PETER MEDICH: No but you, you know what I mean dad.

ACCUSED: Yeah.

PETER MEDICH: I'm saying from - it's a good perspective…

ACCUSED: Mm.

PETER MEDICH: …that they have gone away from trying to tie you into it. And this is written by Kate McClymont.

ACCUSED: Well why are they trying to tie me into it? I never done anything anyway.

PETER MEDICH: I know that Ron. I know that. But I'm saying you know.

ACCUSED: What paper was that in anyway?

PETER MEDICH: Ah that was in the Herald.

ACCUSED: Mm-hm.

PETER MEDICH: It says um…'but as it would turn out it was according to Police, Medich's friend Gattellari who was to be the one who desired to see an end to McGurk. Medich has not been accused by police of any involvement in this conspiracy at all to kill McGurk. So…

ACCUSED: I (ind).

PETER MEDICH: …it's quite a long, quite a long article but it's a good article dad.

ACCUSED: Good.

PETER MEDICH: You know what I mean?

ACCUSED: I still find it difficult to think that Gattellari was involved in it in any way. So you know.

PETER MEDICH: Yeah.

ACCUSED: Sounds like bullshit to me. But anyway I I don't know. I haven't been following any of it.

(Emphasis added).

3. Some social conversation followed, before a passing reference being made (towards the end of the conversation) to the fact that the article had appeared in an edition of The Sydney Morning Herald.

4. The submissions of senior counsel for the accused centred upon the bolded passage of the conversation. However in submitting that the evidence was relevant, senior counsel made it clear that he was seeking to tender not only that passage, but also some of what had preceded it, in order to place the evidence in what was said to be its proper context.

5. It was submitted that the bolded passage was relevant because it served as an indicator of the fact that even after the deceased's murder, the accused remained trusting of Gattellari. This, it was said, was relevant in light of the extensive cross-examination of Gattellari as to the nature of his relationship with the accused.

6. The Crown submitted that the conversation was entirely irrelevant. It was submitted that it amounted to little more than a discussion between the accused and his son about a newspaper article, and an opinion which was said to have been expressed in it. It was further submitted that properly viewed, the entirety of the conversation was entirely irrelevant to any issue in the trial. In the alternative, the Crown submitted that if I reached the view that the evidence was relevant, I should exclude it in the exercise of my discretion under s. 135(b) of the Evidence Act 1995 (NSW) (“the Act”) on the basis that its probative value was substantially outweighed by the danger that it may be misleading and/or confusing.

7. Because of the way in which the argument developed, the focus is necessarily upon the fundamental question of whether or not the evidence is relevant. Relevance is governed by s. 55 of the Act which is in the following terms:

Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to:

(a) the credibility of a witness, or

(b) the admissibility of other evidence, or

(c) a failure to adduce evidence.

8. The effect of s. 55 is that in order for evidence to be relevant there must exist a possibility that it may have some effect, directly or indirectly, on the assessment of the probability of a fact in issue. Viewed in that way, the terms of s. 55 are wide: see Zaknic v Svelte Corporation Pty Ltd (1995) 61 FCR 171.

9. The essence of the submissions of senior counsel for the accused was that the fact in issue to which the evidence was relevant was the relationship between Gattellari and the accused. Even accepting that such relationship is a fact in issue, the bolded passage of the conversation amounts to nothing more than an expression of opinion by the accused as to who may or may not have been responsible for the deceased's murder. What the accused's opinion might be as to those matters is completely irrelevant to any issue in this trial. To state the obvious, it is a matter for the jury to determine whether they are satisfied beyond reasonable doubt that the accused was involved in the murder of the deceased in the manner which is alleged by the Crown.

10. Leaving aside the bolded passage, the subject matter of the balance of the conversation is even more remote. It amounts to nothing more than a discussion between the accused and his son about the contents of a newspaper article. I do not have the article before me for the purposes of these reasons but accepting what was said, it appears that there was some opinion expressed in the article about who may or may not have been responsible for the deceased's death. For the reasons that I have just outlined that is a question for the jury. It is not a question for the accused, and it is not a question for his son. Moreover, whether the accused's son thought that that article was (as he put it) "fuckin’ stunning" is completely irrelevant to any issue in this trial, as are the responses by the accused to that particular assertion.

11. For those reasons the evidence is excluded.

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Decision last updated: 24 April 2018