R v Ronald Edward Medich (No. 28)

[2018] NSWSC 87

Supreme Court

New South Wales

Medium Neutral Citation:	R v Ronald Edward Medich (No. 28) [2018] NSWSC 87
Hearing dates:	9 February 2018
Date of orders:	09 February 2018
Decision date:	09 February 2018
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1)   I vacate the interim non-publication order which was made on 8 February 2018;     (2)   I dismiss the application.
Catchwords:	CRIMINAL LAW – Procedure – Accused charged with murder – Where witness giving evidence for the Crown against the accused had previously pleaded guilty to his role in the murder and had been sentenced – Where witness had been charged shortly before the commencement of the accused’s trial with conspiracy to extort money from the accused in return for not giving evidence – Where application was made on behalf of the witness that any evidence given in cross-examination in n relation to those charges not be published – Whether such an order necessary to prevent prejudice to the proper administration of justice – Order not necessary – Interim order discharged   WORDS AND PHRASES – “necessary”
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Fairfax Digital Australia & New Zealand Pty Limited v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 Gilbert v R, (2000) 201 CLR 414; [2000] HCA 15 Hughes v R 93 NSWLR 474; [2015] NSWCCA 330 John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324, Montgomery v HM Advocate [2003] 1 AC 641 R v McNeil [2015] NSWSC 357; 250 A Crim R 12 R v Medich (No. 11) [2017] NSWSC 43 Skaf v R [2008] NSWCCA 303
Category:	Procedural and other rulings
Parties:	Regina (Crown) Ronald Edward Medich (Accused) Fortunato Gattellari (Applicant) Fairfax Media Publications Pty Limited (Intervenor)
Representation:	Counsel: Ms S Harris and Ms G Wright (Crown) Mr W Terracini SC and Ms M Curry (Accused) Mr A Hughes (Applicant) Ms L Mullins (Intervenor)   Solicitors: Director of Public Prosecutions (NSW) (Crown) Colin Daley Quinn (Accused)
File Number(s):	2010/356916
Publication restriction:	Nil

Judgment – ex tempore (revised)

1. Before the court is an application made on behalf of the witness Fortunato Gattellari (“Gattellari”) that there be no publication of any evidence that he may give relating to charges in respect of which he is to stand trial in the District Court commencing in October of this year. The order is sought pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act2010 (NSW) (“the Act”).

2. The order sought is opposed by Fairfax Media Publications Pty Limited (“Fairfax”). The order is also opposed by senior counsel for the accused.

3. A similar order was sought on behalf of Gattellari in the previous trial and was refused for the reasons which were then given: R v Medich (No. 11) [2017] NSWSC 43.

4. Submissions were heard on 7 February 2018 and on that occasion I reserved judgment until today. Fairfax relied upon an affidavit of Ms Mullins sworn on 8 February 2018, which was filed following a grant of leave after I had heard submissions.

5. In the course of Gattellari's cross-examination before the jury on 8 February 2018, at a time when judgment on the present application remained reserved, I had cause to make an interim order in the terms which had been sought by Gattellari. I did so in circumstances where I had indicated to the parties that a final judgment would be delivered in respect of the matter today.

6. Before dealing with the substance of the application, it is necessary to provide some brief background in order to put the application into its proper context.

7. The accused is standing trial for the murder of Michael McGurk, and for the intimidation of Mr McGurk's wife, Kimberley McGurk. He has pleaded not guilty to both of those counts. Gattellari is currently serving a term of imprisonment, having pleaded guilty to the murder of Mr McGurk. Gattellari is, on any view of it, the Crown's principal witness against the accused.

8. Whilst Gattellari was in custody, police commenced an investigation in relation to certain of his alleged activities, along with those of a number of other persons. Those investigations led to charges being laid against Gattellari for which, as I have indicated, he is to stand trial in the District Court later this year. Count 1 in the joint indictment to be presented against Gattellari and his brother Frank alleges they conspired with each other and with Robert Harley McCarthy to defraud the accused between 1 January 2013 and 20 December 2013. Count 2 alleges that they conspired with each other and with Shayne Hatfield and Linda Monfrooy to defraud the accused between 23 December 2013 and 31 July 2014. Shortly put, it is the Crown case that Gattellari entered into those agreements to demand payment of money from the accused, in return for which Gattellari would agree to give evidence in the accused's trial in a way that would assist the accused to avoid a conviction.

9. As I pointed out at [3] of my previous judgment, it is entirely unsurprising that the allegations against Gattellari will be the subject of cross-examination by counsel for the accused in this trial. We have not yet reached the point in the present trial where these matters have been raised, but it can be reasonably anticipated that when they are, Gattellari will object to answering the questions put to him on the grounds that any such answer(s) may tend to prove that he has committed an offence. In those circumstances, all other things being equal, he is likely to be issued with a certificate pursuant to s 128 of the Evidence Act 1995 (NSW) in relation to such evidence.

10. Counsel for Gattellari advanced a number of submissions in support of the making of the order sought. Firstly, he submitted that if the order were not made there would be prejudice to Gattellari arising from the fact that he would be giving evidence in relation to matters which will be in issue in his forthcoming trial. Counsel emphasised that the trial was now a great deal closer than was the case when I gave my previous judgment approximately 12 months ago. Counsel submitted that what was referred to in argument as the "fade factor" was now of less significance than might otherwise be the case, given that proximity. He submitted that in the circumstances, it was now more likely that any material reported in the media would be read by potential jurors.

11. Secondly, it was submitted that there was a possibility that Gattellari's evidence in respect of these matters in the current trial would diverge from what he had said in the previous trial. That, it was submitted, would give rise to further prejudice.

12. Thirdly, it was submitted that as a witness, Gattellari was in a different position from an accused, and had no right to “defend” any allegation which might be put to him in cross-examination. It was submitted that these circumstances gave rise to a situation where the giving of any evidence by Gattellari in relation to the most recent allegations would be in fundamental conflict with his right to silence, and the presumption of innocence. It was submitted that as a consequence, Gattellari had a perception that by the time his trial in the District Court commences, he will already have been prosecuted for the matters for which he is to stand trial.

13. Ms Mullins on behalf of Fairfax firstly submitted that there remained a substantial period of time which would elapse before Gattellari's trial. She submitted that a period of eight months was more than enough for the “fade factor” to have proper effect. She submitted that it was entirely speculative to say that a member of a jury in Gattellari's trial in October 2018 would somehow be prejudiced by material which might be published in February 2018. She also pointed out that any such prejudice was predicated on the fundamental assumption that any potential juror would have had this material brought to his or her attention in the first place.

14. Secondly, Ms Mullins submitted that it was a fundamental principle that a jury will comply with directions given by a trial judge. She submitted that as a matter of course, trial judges direct jurors at the commencement of any trial to ignore any previous publicity which might have been given to any issue bearing on the trial and, in particular, direct jurors as to the prohibition of searching for material on the internet.

15. Thirdly, as to the suggested possibility of a divergence between Gattellari's evidence in this trial and that given in the previous trial of the accused, Ms Mullins submitted that such a factor was purely speculative.

16. Finally, Ms Mullins submitted that as a consequence of the judgment that I had given in the last trial, there had already been extensive media reporting of the very material which was in issue on the current application. In this regard, she relied upon her affidavit to which I referred earlier. In my view, at its highest, the affidavit establishes little more than the fact that there has been previous publication of material relating to Gattellari’s forthcoming trial. The extent of that publication is, on the basis of the affidavit, impossible to determine.

17. The Crown's position on the application was that the integrity of Gattellari's trial should be preserved. However, the Crown Prosecutor made it clear that she did not submit that a refusal of the order sought would result in such integrity being compromised. Senior counsel for the accused, as I have said, opposed the application. In doing so, he cited fundamental principles of open justice.

18. The application has been brought pursuant to s 8(1)(a) of the Act, which is in the following terms:

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,…

19. As I observed in my previous judgment (at [17]), that section confers a discretion to make an order if I come to the conclusion that such order is necessary to prevent prejudice to the proper administration of justice. The meaning of the word "necessary" was considered by Basten JA in Fairfax Digital Australia & New Zealand Pty Limited v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125. His Honour observed (at [45]) that the word can have shades of meaning and that it is not a word of "a fixed character". Its meaning will necessarily depend upon the context in which it is used. It is also necessary to bear in mind the provisions of s 6 of the Act, pursuant to which I must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

20. There are a number of fundamental principles which bear upon the resolution of the present application. The first is that to which I referred a moment ago namely, the principle of open justice. In John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 Spigelman CJ made a number of observations (commencing at [18]) regarding that principle. Firstly, his Honour referred to the fact that the principle is one of the most fundamental aspects of the system of justice in this country and that the conduct of proceedings in public is an essential quality of an Australian court of justice. Secondly, he observed that exceptions to the principles are few and are strictly defined. Thirdly, he observed that the entitlement of media outlets to report on court proceedings is a corollary of the right of access to the court by members of the public, and that nothing should be done to discourage fair and accurate reporting of proceedings. Fourthly, his Honour observed that from time to time courts do make orders that some aspects of court proceedings not be the subject of publication, but he was quick to point out that any such order must, in light of the principle of open justice, be regarded as exceptional.

21. A second principle which bears upon the present application is the recognition of the fact that the system of criminal justice proceeds on the fundamental assumption that jurors will take into account, and act strictly upon, directions which are given by a trial judge: Gilbert v R (2001) 201 CLR 414; [2000] HCA 15 at [31] (per Gleeson CJ and Gummow J).

22. Bearing in mind those principles, and in the circumstances of the present case, I have determined that the application should be refused for a number of reasons.

23. Firstly, as I have already pointed out, Gattellari's trial is still eight months away. Whilst it is highly likely that at least some of the evidence the subject of the present application will, absent any order being made, be the subject of some media coverage, I would expect that coverage to occur in the immediate future, at a time when the trial is still in progress. The gap between that time and Gattellari's trial is such that, in my view, even if it were to be assumed that the material came to the attention of a potential juror, such publication is not likely to give rise to the prejudice to which counsel for Gattellari referred. The lapse of time between media publicity and the relevant trial is a significant factor in an application of this nature: R v McNeil [2015] NSWSC 357 at [66], citing Montgomery v HM Advocate [2003] 1 AC 641 at 673; see also Skaf v R [2008] NSWCCA 303 at [27].

24. Secondly, and fundamentally, it is accepted that jurors act in accordance with directions given by a trial judge. In Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 (Beazley P, Schmidt and Button JJ), the Court of Criminal Appeal made the following observations at [70]:

“For centuries now, courts have had confidence that juries will decide the cases which they are called on to judge, on the basis of the evidence and that they will adhere to the directions which they are given by the presiding trial judges. Experience, including that revealed by this trial, demonstrates that despite fast moving technological advances which have provided people with enhanced means of communication, jurors still approach their tasks conscientiously.”

25. It is worthy of note that such observations were made in a case, the publicity relating to which was substantially greater than that with which I am presently dealing.

26. Thirdly, I am unable to accept the submission that a possible divergence by Gattellari in his evidence forms, either by itself or in combination with other factors, a proper basis for making the order sought. Quite apart from any other consideration, the suggestion that there may be such a divergence is wholly speculative.

27. It follows that I am not satisfied that the order sought is necessary to prevent prejudice to the proper administration of justice. I therefore make the following orders:

1. I vacate the interim non-publication order which was made on 8 February 2018;   

2. I dismiss the application.

**********

Decision last updated: 26 April 2018