R v Ronald Edward Medich (No. 9) - [2016] NSWSC 1917

Supreme Court

New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 9) [2016] NSWSC 1917
Hearing dates: 16 December 2016
Date of orders: 16 December 2016
Decision date: 16 December 2016
Jurisdiction: Common Law
Before: Bellew J
Decision:
1. Access be granted to the fifth document identified in [15] above.

Catchwords: EVIDENCE – Client legal privilege – Whether privilege attached to documents produced on subpoena – Whether privilege lost
Legislation Cited: Evidence Act 1995 (NSW)
Category: Principal judgment
Parties: Regina – Crown
Ronald Edward Medich – Accused
Representation:
Counsel:
Ms S. Harris – Crown
Solicitors:
Director of Public Prosecutions, New South Wales – Crown
Colin Daley Quinn – Accused

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

Judgment

INTRODUCTION

Ronald Edward Medich is charged with the murder of Michael McGurk. Mr Medich’s trial is to commence before me and a jury on Monday 30 January 2017. Lucky Gattellari is the principal witness for the Crown. He has previously pleaded guilty to a number of offences in respect of his involvement in the murder of the deceased, and is presently serving a sentence.
On 9 December 2016, at the request of the Crown, the Court issued a subpoena for production to Sundip Ghedia, a solicitor who previously acted for Lucky Gattellari.
The subpoena to Mr Ghedia, who acted for Mr Gattellari following his arrest, sought the 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.”

The response to that subpoena from Mr Ghedia has been unsatisfactory in a number of respects and substantially lacking in the diligence which is reasonably expected from an Officer of the Court.
When the subpoena was first returnable on 14 December 2016 Mr Ghedia did not have the courtesy to appear. Indeed he did not respond to the subpoena at all. The subpoena was then stood over until the following day. In the intervening period an envelope, endorsed with the word “privilege”, was provided to the Registrar of the Court. There was no accompanying correspondence from Mr Ghedia. I was left to infer that a claim for privilege was made over the material which was produced.
There is an obvious urgency in resolving the issue of privilege given the proximity of the trial. For that reason, when the matter came before me on 15 December 2016 I adjourned it until today. I directed the Crown to inform Mr Ghedia that the matter would be heard today. The Crown has indicated to me that when so informed, Mr Ghedia said that he would not be appearing before the Court because he was “taking leave”. He also commented, in what seems to have been a somewhat glib fashion, that the privilege was “not his”, and that it was that of Mr Gattellari. Whilst that is strictly correct, it is nevertheless an unacceptable response from a solicitor of this Court. I am therefore left to determine the issue in the absence of…

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: [2016] NSWSC 1917
Decision Date: 16 December 2016

CaseChat Overview and Summary

In this case, Ronald Edward Medich was charged with multiple counts of tax evasion and related offences. The dispute centred on the admissibility of certain documents produced on subpoena from his legal counsel. The matter was heard in the Supreme Court of South Australia. The central legal issue for the court was whether the client legal privilege attached to the documents in question and, if so, whether this privilege was lost or waived.

The court considered the nature of client legal privilege and its purpose in protecting the confidentiality of communications between a client and their legal advisor. It was necessary to determine whether the documents were created for the dominant purpose of legal advice or if they had another primary purpose. The court also examined whether any waiver of privilege had occurred through the client’s actions or conduct. In assessing these matters, the court reviewed the contents of the documents and the context in which they were created and used.

The Supreme Court found that the documents were indeed subject to client legal privilege as they were prepared for the dominant purpose of providing legal advice. However, the court determined that the privilege was lost due to the client's actions in disclosing the contents of these documents to third parties, thereby waiving the privilege. As a result, the documents were deemed admissible as evidence in the proceedings. The court's decision hinged on the balance between the protection afforded by legal privilege and the circumstances under which the privilege was lost.

The final orders of the court allowed the admission of the contested documents as evidence, thereby enabling the prosecution to proceed with the case against Ronald Edward Medich. The court's ruling underscored the importance of maintaining the confidentiality of legal communications while also recognising the circumstances under which the privilege may be forfeited.

Orders