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was made on behalf of the witness that any evidence given in cross-examination in n relation to those charges not be published – Whether such an order necessary to prevent prejudice to the proper administration of justice – Order not necessary – Interim order discharged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)

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

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: [2018] NSWSC 87
Decision Date: 09 February 2018

CaseChat Overview and Summary

Ronald Edward Medich was charged with the murder of a man. One of the witnesses for the prosecution, a man named Robert Charles O’Brien, had previously pleaded guilty to his involvement in the murder and had been sentenced. Before the commencement of Medich's trial, O’Brien was charged with conspiracy to extort money from Medich in return for not giving evidence. An application was made on behalf of O’Brien that any evidence given in cross-examination in relation to those charges not be published. The application was heard by the Supreme Court of New South Wales.

The court had to decide whether such an order was necessary to prevent prejudice to the proper administration of justice. The court found that the application was not necessary as the evidence related to O’Brien's charges was already in the public domain. The court also found that the evidence related to the extortion charges was not relevant to the murder charge against Medich and therefore, would not prejudice the proper administration of justice.

The court discharged the interim order made earlier. The court found that the application was not necessary as the evidence related to O’Brien's charges was already in the public domain. The court also found that the evidence related to the extortion charges was not relevant to the murder charge against Medich and therefore, would not prejudice the proper administration of justice.

No orders were made. The court discharged the interim order made earlier.

Orders