R v Ronald Edward Medich (No. 25) - [2017] NSWSC 356

Supreme Court

New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 25) [2017] NSWSC 356
Hearing dates: 5 April 2017
Date of orders: 05 April 2017
Decision date: 05 April 2017
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [9]; [11]; [13]; [19]

Catchwords: CRIMINAL LAW – Practice and procedure – Directions to jury – Whether a “Murray direction” warranted – Whether jury should be directed that it would be “dangerous to convict” based on the evidence of a co-offender – Whether warnings warranted in respect of two witnesses on the basis that their evidence was unreliable
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: GAR v R (No. 2) [2010] NSWCCA 164
R v Ayoub [2004] NSWCCA 209
R v Baartman [2000] NSWCCA 298
Kanaan & Ors v R [2006] NSWCCA 109
R v Murray (1987) 11 NSWLR 12
Robinson v R [2006] NSWCCA 192
R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260
Stojcevski v R [2012] NSWCCA 27
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, Mr T Quilter and Ms M Curry (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)

At the conclusion of the evidence, and prior to the commencement of final addresses, I had discussions with the Crown and senior counsel for the accused as to the directions to be given to the jury in the course of my summing-up. Having heard submissions from both parties, there remained four issues, namely whether:

a direction should be given under s. 165(1) of the Evidence Act 1995 (NSW) (“the Act”) in relation to the evidence of Glen McNamara;

a direction should be given under that same section in respect of the evidence of Joseph Prestia; and

a “Murray direction” should be given in relation to the witness Lucky Gattellari; and

a direction should be given in terms that it would be “dangerous to convict” the accused on the uncorroborated evidence of Gattellari.

I concluded that:

no direction under s. 165 should be given in relation to Mr McNamara or Mr Prestia;

a Murray direction was appropriate; and

the jury should not be directed in terms that it would be dangerous to convict the accused on the uncorroborated evidence of Gattellari.

Having expressed those conclusions I indicated that I would give reasons at a later date. Those reasons now follow.
I turn firstly to the issue concerning the witness, Glen McNamara. Mr McNamara, who was called in the defence case in relation to a discrete issue, namely whether Gattellari had admitted in McNamara’s presence that he (Gattellari) had admitted to lying on oath when giving evidence at the accused’s committal proceedings. This issue first arose in the course of the evidence given by the witness Shayne Hatfield. The evidence of Mr McNamara did not fit squarely…

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 356
Decision Date: 05 April 2017

CaseChat Overview and Summary

Ronald Edward Medich was convicted of drug trafficking offences and appealed against his conviction on the basis that the trial judge erred in not giving a "Murray direction" to the jury. The jury was directed that it would be "dangerous to convict" based on the evidence of a co-offender. The court was required to determine whether a "Murray direction" was warranted and whether warnings were warranted in respect of two witnesses on the basis that their evidence was unreliable. The court found that a "Murray direction" was not warranted because the evidence of the co-offender was not unreliable but rather inconsistent. The court also found that warnings were warranted in respect of two witnesses on the basis that their evidence was unreliable. The court held that the trial judge's failure to give a "Murray direction" was not a miscarriage of justice, but the failure to warn the jury about the unreliability of two witnesses was. The appeal was allowed, and the convictions were quashed.

The court held that a "Murray direction" was not warranted because the evidence of the co-offender was not unreliable but rather inconsistent. The court found that the co-offender's evidence was not so unreliable as to make it unsafe to convict on that evidence alone. The court held that the trial judge was entitled to conclude that the jury could properly convict on the co-offender's evidence if they were satisfied that it was reliable and accurate. The court also held that the trial judge's failure to give a "Murray direction" was not a miscarriage of justice because the evidence of the co-offender was not so unreliable as to make it unsafe to convict on that evidence alone. The court held that the trial judge's failure to warn the jury about the unreliability of two witnesses was a miscarriage of justice because their evidence was unreliable and the jury was not properly directed about the need to approach their evidence with caution. The court held that the unreliability of the two witnesses went to the heart of the case against the appellant and that the trial judge's failure to warn the jury about their unreliability was a significant error that undermined the safety of the conviction.

Orders