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

1. 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.

2. 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.

3. 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.”

4. 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.

5. 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.

6. 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 any assistance from Mr Ghedia. Thankfully, I have had considerable assistance from the Crown Prosecutor.

7. The purpose for which production of the material was sought arises from the contents of a statement made by Gattellari to the police in which he recounted the events following his arrest in 2010. At [225] of that statement (which was made on 2 November 2010) Gattellari said the following:

“When I spoke to Sundip Ghedia at Liverpool Police Station the day I was arrested the conversation took place in a small room with a glass divider in the afternoon. During that conversation I asked him ‘could you please contact my son Loren and ask him to speak to Peter, to speak to his dad to help me with some bail money and money for legal fees, probably about $1 million’. Sundip told me that he would take care of that. When I said the name Peter I was referring to Peter Medich who is Ron Medich’s son. When I said this to Sundip Ghedia I genuinely believed that Ron Medich would assist me with bail money and money for legal fees. I said to Sundip Ghedia ‘I want to use Tony Bellanto if he is available’.”

8. On 10 June 2014 Gattellari signed a letter headed “To Whom It May Concern” in the following terms:

“I Lucky Gattellari give my consent and waive any legal professional privilege for Mr Sundip Ghedia of Wyndham Prem Commercial Lawyers, to supply a statement to the police regarding his representation of me as my solicitor for the criminal matters related to the murder of Michael McGurk.”

9. The Crown has explained that the legitimate forensic purpose for which production of, and access to, this material has been sought goes to the issue of the suggested provision, by the accused, of money to assist Gattellari in obtaining bail and paying his legal fees. The Crown submitted that a legitimate forensic purpose has been established, and that the effect of Gattellari’s statement was that he has waived any privilege which might otherwise have attached to the material.

10. In those circumstances I turn to the documents which have been produced.

11. The first document produced is headed “Meeting In Custody With Senad Kaminic”. That document could not possibly fall within the terms of the subpoena. Its production is reflective of the unsatisfactory approach taken by Mr Ghedia to this entire matter.

12. The second document is dated 14 October 2010. It lists, amongst other things, the names of members of the Bar. The inference to be drawn is that Mr Ghedia was enquiring of various members of the Bar about their possible representation of Mr Gattellari.

13. The third document is one of five pages and is headed “14 October 2010 Meeting in Custody with Lucky and Tony Bellanto”. That document clearly sets out the instructions provided by Gattellari to Mr Ghedia. Without going into detail the document contains a passing reference to bail, but that reference is not made in the context articulated by the Crown.

14. The fourth document is one of three pages which records, it seems, a meeting between Mr Ghedia, Detective Sheehy and Detective Fitzhenry. There is a real issue about whether that document falls within the schedule to the subpoena.

15. The fifth document is, in part, a file note detailing the applicant’s first appearance before a Magistrate on 14 October 2010. That document does not fall within the terms of the schedule to the subpoena. However there are two further pages to that document, the first of which is headed “Meeting in Custody with Lucky Gattellari with Tony”. The reference to “Tony” I infer is a reference to Mr Bellanto QC, a member of the New South Wales Bar. There are references in that document to the matter to which the Crown has referred.

16. Bearing in mind [225] of the statement of Gattellari, the contents of the second and third pages of the fifth document, at least in one respect, appear to be consistent with what it is in Gattellari’s statement. That is the one document which falls within the purview of what is sought by the Crown. The overwhelming inference to be drawn is that it is a document of a confidential nature which has been prepared for the dominant purpose of allowing Mr Gattellari to be provided with legal advice, thus attracting the application of s. 119 of the Evidence Act 1995 (NSW) (“the Act”). However, there is an obvious issue as to whether or not such privilege, as would otherwise attach to that document, has been waived.

17. Section 122 of the Act deals with the loss of client legal privilege. Section 122(3) provides, amongst other things, that a person is taken to have acted in a way inconsistent with a claim for privilege if that person has knowingly and voluntarily disclosed the substance of the evidence to another person. It seems to me on the face of it that that is precisely what Mr Gattellari has done in [225] of his statement. I am satisfied in those circumstances that any privilege which might otherwise have attached to the fifth document has been lost and that the Crown, and indeed the solicitor for the accused, is entitled to access to it.

18. Accordingly I order that access be granted to the fifth document identified in [15] above.

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Decision last updated: 24 April 2018