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Supreme Court 30 September 2014

R v Medich (No 2)

[2014] NSWSC 1842

HomicidePublic order & justice offences
CRIMINAL LAW APPLICANT CHARGED WITH MURDER

Citation: R v Medich (No 2) [2014] NSWSC 1842
Court: Supreme Court of New South Wales
Date: 30 September 2014
Judge(s): Bellew J

Background

The accused faced charges of murdering Michael McGurk at Cremorne on 3 September 2009, and intimidating McGurk's widow on 8 August 2010. The Crown alleged the accused, a prominent property developer, had a bitter falling-out with the deceased over a series of joint business ventures and that he arranged the murder through associates, including a long-time business associate named Gattellari.

Before being charged, the accused was compelled to give evidence before the NSW Crime Commission as part of an investigation by Strike Force Narrunga. Police officers were present at that examination. The accused later sought a permanent stay of the criminal proceedings, arguing that the police involvement in and around his compulsory examination had so tainted the prosecution as to make a fair trial impossible.

The application was brought by notice of motion dated 18 June 2014 and was opposed by the Crown. The trial date of 25 August 2014 had already been vacated pending resolution of the stay application.

  • Whether the presence of police at the accused's compulsory examination before the NSW Crime Commission warranted a permanent stay of the murder and intimidation charges
  • Whether police discussions following the examination, or tasks created in response to it, tainted the prosecution
  • Whether search warrants obtained by police following the examination were improperly influenced by the accused's compelled evidence
  • Whether the statements and evidence of Gattellari were derived, directly or indirectly, from the accused's compulsory examination
  • Whether DPP lawyers had accessed the transcript of the accused's compelled evidence, and if so, whether that access warranted a permanent or temporary stay
  • Whether the accused's capacity to conduct his defence had been compromised by his appearance before the Commission

Decision

Bellew J dismissed the application for a permanent stay. His Honour considered the general principles governing permanent stays, which require a very high threshold: the accused must demonstrate that the continuation of the proceedings would be so unfair or oppressive as to constitute an abuse of process. A permanent stay is a remedy of last resort.

On the central question of police presence at the examination, His Honour was not satisfied that the presence of police officers at the Commission's compulsory examination, or the subsequent discussions and tasks arising from it, had produced any material unfairness. The evidence did not establish that anything the accused said during his compelled examination was used to obtain Gattellari's statements or to formulate the prosecution case against him. The accused had made no admissions and said nothing that directly implicated him in the murder.

His Honour also found that the search warrants obtained by Detective Howe following the examination were not improperly influenced by the accused's compelled evidence. The evidence established that the relevant police and DPP lawyers who worked on the prosecution had not read the transcript of the accused's Commission evidence. The court was satisfied that DPP lawyers had accessed Gattellari's statements and evidence, but found no basis for concluding that material derived from the accused's compelled examination.

The application for a temporary stay was also rejected. His Honour found no warrant for restricting DPP lawyers' access to Gattellari's material, which was expected to form a significant part of the cross-examination of Gattellari at trial. The accused's capacity to defend himself had not been shown to be altered or compromised by his appearance before the Commission or anything associated with it.

Orders Made

  • The applicant's notice of motion dated 18 June 2014 is dismissed.

Key Takeaways

  • Permanent stays of criminal proceedings remain a remedy of last resort, available only where continuation of the proceedings would be so unfair or oppressive as to constitute an abuse of process.
  • Police presence at a compulsory Crime Commission examination does not, without more, establish that the accused's compelled evidence has infected the subsequent prosecution. The accused must demonstrate a causal link between the compelled evidence and identifiable prejudice to the conduct of the defence.
  • Where the accused made no admissions and said nothing self-incriminating at a compulsory examination, the threshold for demonstrating that his capacity to defend himself was compromised becomes correspondingly more difficult to satisfy.
  • A temporary stay will also be refused where the evidence does not support a finding that prosecution lawyers accessed, or acted on, compelled examination material.
  • In assessing applications of this kind, courts will examine closely the actual knowledge and conduct of each officer or lawyer involved, rather than treating the prosecution as a single undifferentiated entity presumed to have used all information gathered during an investigation.

Legislation and Cases Referenced

Legislation:
- Australian Crime Commission Act 2002 (Cth)
- Criminal Procedure Act 1986 (NSW)
- New South Wales Crime Commission Act 1985 (NSW)

Cases:
- Barton v R [1980] HCA 48; (1980) 147 CLR 75
- Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256
- Boulos v R [2008] NSWCCA 119
- Dupas v R [2010] HCA 20; (2010) 241 CLR 237
- Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23
- Lee and anor v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363
- Lee v The Queen [2014] HCA 20; (2014) 308 ALR 252
- QAAB v Australian Crime Commission [2014] FCA 747
- R v CB; MP v R [2011] NSWCCA 264
- R v Edwards [2009] HCA 20; (2009) 83 ALJR 717
- R v Gattellari; R v Kaminic [2013] NSWSC 1097
- R v Glennon [1992] HCA 16; (1992) 173 CLR 592
- R v Medich (No 1) [2014] NSWSC 1013
- R v Seller; R v McCarthy [2013] NSWCCA 42; (2013) 273 FLR 155
- R v Seller; R v McCarthy [2012] NSWSC 934; (2012) 269 FLR 125
- R v X [2014] NSWCCA 168
- Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
- X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92