R v Ronald Edward Medich (No. 42) - [2018] NSWSC 379

Supreme Court

New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 42) [2018] NSWSC 379
Hearing dates: 26 March 2018
Date of orders: 26 March 2018
Decision date: 26 March 2018
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [10]

Catchwords: CRIMINAL LAW – Evidence – Privilege against self-incrimination – Where witness objected to answering questions in the course of evidence – Where witness serving a sentence of imprisonment – Where witness attended by order of the Court but not under subpoena – Whether witness answering questions under compulsion
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4
Ferrall v Blyton [2000] FamCA 1442; (2000) 27 Fam LR 178;
Song v Ying (2010) 79 NSWLR 442; [2010] NSWCA 237
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)

Senior counsel for the accused has called Glen Patrick McNamara (“McNamara”) to give evidence in the accused's case. McNamara is currently serving a term of imprisonment following his conviction by a jury for murder and the supply of a prohibited drug. I anticipate that McNamara will be asked questions touching upon issues which have given rise to the Crown's principal witness, Fortunato Gattellari (“Gattellari”) being charged with conspiring to defraud the accused of a substantial sum of money. There have already been extensive references to McNamara's alleged involvement in that offending. In particular, there have been a number of references to his attendance at Cooma gaol on an occasion in 2014 where he is said to have met with some of the alleged co-conspirators. McNamara himself has not been charged with any offence.
At the request of those acting for the accused, I previously made an order pursuant to s 77 of the Crimes (Administration of Sentences) Act1999 (NSW) (“the CAS Act”) which is in the following terms:

77 Attendance of inmates before courts and court officers
(1) If an appropriate authority is satisfied that:
(a) it is necessary that an inmate should attend before it for the purposes of any legal proceeding, inquest or inquiry, and
(b) the absence of the inmate may prejudice the rights of a party,
the authority may make an order directing the Commissioner to cause the inmate to be produced at the court or other place at which the proceeding, inquest or inquiry is being, or is to be, held.
(2) Such an order is sufficient authority for the governor of the correctional centre in which the inmate is held to cause the inmate to be produced in accordance with the order.
(3) An inmate produced in accordance with such an order is…

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 379
Decision Date: 26 March 2018

CaseChat Overview and Summary

Ronald Edward Medich was convicted of murder and was serving a life sentence in prison. During his trial, the prosecution sought to call a witness, Dr. John, who was serving a sentence for a different offence. The witness was brought to court by order of the Court, but not under subpoena. The witness initially objected to answering questions due to the privilege against self-incrimination, but later answered questions after being instructed by the court. The central issue for the court was whether the witness was compelled to answer questions under the privilege against self-incrimination.

The court held that the privilege against self-incrimination was not available to the witness, as he was not under subpoena and had been brought to court by order of the court. The court found that the witness was not subject to the same compulsion as a witness who is brought to court under subpoena. The court further held that the witness's initial objection was not sufficient to invoke the privilege against self-incrimination and that the witness was not coerced into answering questions. The court found that the witness's answers were voluntary and not the result of any compulsion.

The court concluded that the witness was not entitled to the privilege against self-incrimination and that his answers were admissible as evidence. The conviction and sentence of the appellant were upheld by the court. The court held that the witness's answers were properly admitted and that the appellant's conviction was not affected by any error in the admission of the evidence. The court found that the evidence was sufficient to support the appellant's conviction and that the sentence was appropriate in the circumstances of the case.

Orders