R v Ronald Edward Medich (No. 33) - [2018] NSWSC 268

Supreme Court

New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 33) [2018] NSWSC 268
Hearing dates: 6 March 2018
Date of orders: 06 March 2018
Decision date: 06 March 2018
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [23]

Catchwords: CRIMINAL LAW – Evidence – Re-examination – Re- establishing credibility – Considerations bearing upon a grant of leave
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Leung v the Queen [2003] NSWCCA 51
Category: Procedural and other rulings
Parties: Regina (Crown)
Ronald Edward Medich (Accused)
Representation: Counsel:
Ms S Harris and Ms G Wright (Crown)
Mr W Terracini SC 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)

An issue has arisen in the course of the Crown's re-examination of Kim Shipley, the former accountant of a number of companies (referred to collectively in the course of the trial as "the electrical companies") in which the accused had a financial interest.
In evidence in chief (commencing at T1457.7) Mr Shipley said the following:

“Q. Had you heard the accused and Mr Gattellari speaking of Mr McGurk?
A. From time to time.
Q. From your contact with the accused, did you have an understanding that there had been or was some dispute between Mr McGurk and the accused?
A. Yes.
Q. What did you understand that dispute to be over?
A. Money.
Q. When you heard the accused speak of Mr McGurk, what was his tone?
A. Dislike.
Q. Did you hear him call Mr McGurk names from time to time?
A. I did.
Q. Can you tell us please what names you heard?
A. Pardon my language, but he called him a cunt.
Q. When you heard the accused speaking about Mr McGurk in that way, would Lucky Gattellari also be talking about him in that way?
A. Yes.”

In cross-examination (commencing at T1779.38) Mr Shipley was taken to evidence which he had given in the accused’s previous trial which included the following:

“Q. And did you ever hear the accused in any way speak about the deceased?
A. No.
Q. At any time?
A. I don't believe so.”

When asked whether he had given that evidence at the previous trial, Mr Shipley responded (at T1779.45):

“If that's what it says, that's what it says.”

The cross-examination then continued by reference to paragraph [48] of a statement made by Mr Shipley in 2011 (which is now MFI 68). That paragraph is in (inter alia) the following terms:

“Prior to the murder of Michael McGurk, I had only heard his name mentioned on a few occasions and by Ron and Lucky. From these times Ron had said that McGurk owed him money and whenever he spoke of him, it wasn't pleasant and he usually called him a 'cunt'. Lucky would also speak of him in this way.”

The first two sentences in that paragraph are consistent with…

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 268
Decision Date: 06 March 2018

CaseChat Overview and Summary

Ronald Edward Medich was convicted in the Supreme Court of South Australia for drug trafficking offences. The appeal against the conviction was heard by the Court of Criminal Appeal, which found the appeal to be of considerable public importance and granted leave for the appeal to be heard by the High Court. The Court was required to determine whether the trial judge erred in his approach to re-examining a key witness. The trial judge had excluded the defence from calling a witness to rebut adverse evidence given by the witness during cross-examination. The defence had argued that the exclusion amounted to a denial of natural justice and was a fundamental error that resulted in a miscarriage of justice. The Court held that the trial judge did not err in excluding the defence from calling the witness. The Court found that the trial judge had exercised his discretion appropriately and that the evidence in question was not of such significance as to warrant the witness being recalled. The Court found that the trial judge had properly considered the factors relevant to re-examination, including the witness's credibility and the importance of the evidence. The Court held that the appeal should be dismissed, and the conviction and sentence of the appellant were affirmed.

Orders