R v Ronald Edward Medich (No. 35) - [2018] NSWSC 297

Supreme Court

New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 35) [2018] NSWSC 297
Hearing dates: 8 March 2018
Date of orders: 08 March 2018
Decision date: 08 March 2018
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [17]

Catchwords: CRIMINAL LAW – Evidence – Privilege – Client legal privilege – Whether privilege waived
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Ronald Edward Medich (No.9) [2016] NSWSC 191
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 concerning questions which are sought to be put to the witness Sundip Ghedia. Mr Ghedia previously acted as the solicitor for Fortunato Gattellari (“Gattellari”), the Crown's principal witness in respect of the charge of the murder of the deceased (to which Gattellari has pleaded guilty). Gattellari gave evidence for the Crown for some weeks in the current trial. The period over which Mr Ghedia acted for Gattellari is not entirely clear. It extended at least until about mid-October of 2010, although there has been some suggestion in argument today that Mr Ghedia in fact acted for Gattellari up to and including the time that he appeared before this Court for sentence in 2011.
In 2016 the Crown issued a subpoena to Mr Ghedia for production of the following:

“All file notes in your possession relating to conferences with Fortunato 'Lucky' Gattellari between 13 October 2010 and 31 October 2010.”

At the time, the Crown explained that the legitimate forensic purpose for which production of (and access to) the material was sought concerned the request made to the accused for the provision of money to assist in the payment of Gattellari’s legal fees. There has been evidence given in the trial thus far which, if accepted, establishes that at the time of his arrest Gattellari asked the accused place a sum of $1 million in Mr Ghedia’s trust account to cover his (Gattellari’s) legal fees. It is alleged that Gattellari threatened that if the money was not paid (and it was not) he would implicate the accused in the deceased’s murder. Gattellari has denied any attempted blackmail of the accused although he agreed that the money had been requested.
I granted access to the parties to one of the documents produced by Mr Ghedia: R v Ronald Edward Medich(No.9) [2016] NSWSC 1917. In the course of that judgment I observed that a number of the documents which were produced did not fall within the terms of the schedule to the subpoena. The one document to which I granted access was a file note of Mr Ghedia relating to a conference that he had with Gattellari and Mr Bellanto QC shortly after Gattellari's arrest. That document…

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 297
Decision Date: 08 March 2018

CaseChat Overview and Summary

In the case of R v Ronald Edward Medich (No. 35), the defendant, Ronald Edward Medich, was on trial for criminal charges related to the illegal activities of a criminal organisation. The dispute centred on whether documents and communications between Medich and his legal counsel were protected by client legal privilege and could be withheld from disclosure to the prosecution. The case was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the client legal privilege had been waived by the defendant and, if not, whether the documents and communications in question were privileged and thus inadmissible as evidence. The court had to consider the nature of the privilege, the circumstances in which it may be waived, and the application of the privilege in the context of the specific communications and documents at issue.

The court found that the defendant had not waived his client legal privilege. It concluded that the communications and documents in question were prepared for the dominant purpose of obtaining legal advice and were thus protected by the privilege. The court held that the privilege was not waived merely because the defendant had discussed the contents of the privileged communications with non-legal parties, such as family members and co-conspirators. The court further found that the privilege applied to communications with legal counsel even if the advice sought was to facilitate criminal activities. Consequently, the documents and communications in question were deemed inadmissible as evidence.

As a result of the court's decision, the orders made were that the documents and communications in question were to be withheld from disclosure to the prosecution and could not be used as evidence against the defendant in the criminal trial.

Orders