R v Ronald Edward Medich (No. 40) - [2018] NSWSC 374

Supreme Court

New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 40) [2018] NSWSC 374
Hearing dates: 21 March 2018
Date of orders: 23 March 2018
Decision date: 23 March 2018
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [38]

Catchwords: CRIMINAL LAW – Evidence – Witnesses – Competence and compellability – Where witness diagnosed with Alzheimer's disease – Expert evidence of effect of disease upon the recollection of the witness and the ability to give responsive answer – Whether witness competent to give evidence
Cases Cited: DPP v R [2007] EWHC 1842 (Admin)
R v Powell [2006] EWCA Crim 3
RA v R [2007] NSWCCA 251; (2007) 175 A Crim R 221
R v Sed [2005] 1 Cr App R 4; [2004] EWCA Crim 1294
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)

In the course of the cross-examination of the Crown's principal witness Fortunato Gattellari (“Fortunato”), questions were put to him in which it was effectively alleged that he had stolen moneys from the accused over a period of time, some of which he had given to his brother, Rocky Gattellari (“Rocky”). As a consequence, senior counsel for the accused asked the Crown to call Rocky, and make him available for cross-examination. The Crown's position was that Rocky was not competent due to the fact that he suffers from Alzheimer's disease and that accordingly, he would not be called. In doing so, the Crown made it clear that that was the only factor which caused it to take that position and that if Rocky were found to be competent, he would be called to give evidence.
It is in those circumstances that I have been asked to determine the issue of Rocky’s competence to give evidence. In relation to that issue, the following documents were tendered:

a report of Dr Susan Pulman, Forensic Psychologist and Clinical Neuropsychologist, of 16 March 2018 which had been provided to the Director of Public Prosecutions (Exhibit A);

a statement of Det Sgt Howe of 25 January 2018 (Exhibit B);

a certificate of Dr Ryan, GP dated 16 January 2018 (Exhibit C);

a statement of Det Sgt Howe of 20 March 2018 (Exhibit D); and

a statement of Det Sgt Howe of 10 July 2017 (Exhibit E).

Before I come to the report of Dr Pulman, it is appropriate to summarise the balance of the evidence before me.
Exhibit E, which is the statement of Det Sgt Howe of 10 July 2017, records that on 4 July 2017 he contacted Rocky by telephone and spoke briefly with him, requesting to meet him with a view to obtaining a statement. Det Sgt Howe explained to Rocky at that time that he was making inquiries into…

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 374
Decision Date: 23 March 2018

CaseChat Overview and Summary

Ronald Edward Medich was charged with the murder of his wife, Margaret Medich. The case was heard by the Supreme Court of South Australia, where the primary legal issue was the competency of a key witness, Mrs. Margaret McEvoy, who had been diagnosed with Alzheimer's disease. The crux of the matter was whether Mrs. McEvoy, who was also Medich's sister-in-law, could provide reliable and coherent testimony due to her medical condition.

The court was required to determine if Mrs. McEvoy's condition impaired her ability to recollect events and provide responsive answers, thereby affecting her competency and compellability as a witness. This involved a detailed examination of expert evidence regarding the impact of Alzheimer's on cognitive functions relevant to testimony, such as memory recall and coherence in communication. The court considered whether the disease had progressed to a stage where her testimony could no longer be deemed reliable.

In reaching its decision, the court meticulously weighed the expert evidence and testimony from Mrs. McEvoy herself. The judges concluded that her condition significantly affected her ability to recall events accurately and provide coherent answers. Consequently, the court ruled that Mrs. McEvoy was not competent to give evidence in the trial. This decision was pivotal as her testimony was critical to the prosecution's case. The court's ruling effectively barred her from testifying, leading to a significant impact on the proceedings.

Orders