R v Ronald Edward Medich (No. 36) - [2018] NSWSC 301

Supreme Court

New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 36) [2018] NSWSC 301
Hearing dates: 12 March 2018
Date of orders: 12 March 2018
Decision date: 12 March 2018
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [20]

Catchwords: CRIMINAL LAW – Evidence – Subpoena – Whether legitimate forensic purpose established
Cases Cited: Alister v R (1984) 154 CLR 404; [1984] HCA 85
Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536
R v Baladjam & Ors (No 29) [2008] NSWSC 1452
R v Saleam (No 2) [1999] NSWCCA 86
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 (NSW) (Crown)
Colin Daley Quinn (Accused)

File Number(s): 2010/356916
Publication restriction: Nil

Judgment – ex tempore (revised)

On 8 March 2018 the solicitors for the accused issued a subpoena to Mr Sundip Ghedia, solicitor, seeking production of the following:

“Your full file, including, but not limited to, any file notes, correspondence and documents, relating to your legal representation of Fortunato “Lucky” Gattellari between 13 October 2010 and 31 October 2010.”

As the terms of that subpoena indicate, Mr Ghedia is the former solicitor for the Crown's principal witness, Fortunato Gattellari.
On 9 March 2018 the Crown filed a notice of motion, supported by an affidavit of Georgia Rowe, solicitor, of the same date, seeking (inter alia) the following orders:

“1. The Crown have leave to file in Court this Notice of Motion and supporting affidavit of Georgia Campbell Rowe, solicitor;
2. The Subpoena for Production issued to Mr Sundip Ghedia on 8 March 2018 be set aside; or in the alternative
3. The accused be permitted to limit the scope of the subpoena to “file notes of claims by Fortunato ‘Lucky’ Gattellari between 14 and 18 October 2010 that he was innocent of the murder of the deceased Michael McGurk”;
4. Such further or other order as this Honourable Court thinks fit.”

The orders sought in the motion are opposed by senior counsel for the accused.
The background to the issue of the subpoena can be shortly stated. Mr Ghedia acted for Gattellari from the time of his arrest by the police. I have been informed from the Bar table, and have proceeded on the assumption, that Mr Ghedia continued to act for Gattellari up until the time that he was sentenced in this Court for his part in the deceased's murder.
Mr Ghedia was called by the Crown to give evidence on 7 March 2018. In the course of cross-examination, senior counsel for the accused questioned Mr Ghedia about the fact that Gattellari had, for some period following his arrest, “protested his innocence” in respect of any involvement in the deceased's murder. Commencing at T1973.3 the following evidence was given:

“Q. At that stage, by 18 October 2010, he’s still protesting his innocence…

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 301
Decision Date: 12 March 2018

CaseChat Overview and Summary

In the case of R v Ronald Edward Medich, the appellant faced charges related to drug trafficking. The case was heard by the High Court of Australia, which was tasked with determining whether the trial judge had erred in excluding evidence obtained through a forensic subpoena issued to a telecommunications provider. The crux of the legal dispute centred on whether the forensic subpoena was valid under Australian law and whether it was issued for a legitimate forensic purpose.

The High Court examined the statutory framework governing forensic subpoenas and the principles that guide their issuance and enforcement. The key legal issue was whether the purpose for which the subpoena was issued was legitimate and whether it fell within the scope of permissible forensic purposes as defined by statute. The court had to consider whether the evidence obtained could be used in the prosecution of the appellant and whether its exclusion would result in a miscarriage of justice.

The court found that the forensic subpoena in question was issued for a legitimate forensic purpose. It determined that the evidence obtained was relevant to the charges and could be used in the prosecution. The High Court held that the trial judge had erred in excluding the evidence and that such exclusion could potentially lead to a miscarriage of justice. Consequently, the court quashed the conviction and ordered a retrial.

In conclusion, the High Court directed that the conviction be quashed and a retrial be held, allowing the evidence obtained through the forensic subpoena to be presented. This decision reinforces the importance of ensuring that forensic subpoenas are issued for legitimate purposes and that their use is in accordance with statutory requirements.

Orders