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Supreme Court 25 July 2016

R v Medich (No 6)

[2016] NSWSC 1001

Homicide
CRIMINAL LAW PRACTICE AND PROCEDURE APPLICATION TO VACATE TRIAL OBLIGATIONS OF DISCLOSURE DECEASED KILLED IN 2009 TRIAL APPLICATIONS

Citation: R v Medich (No 6) [2016] NSWSC 1001
Court: Supreme Court of New South Wales
Date: 25 July 2016
Judge: Bellew J

Background

The accused was charged with the murder of a man shot dead outside his Cremorne home in September 2009, as well as with soliciting to murder and intimidating the deceased's wife. The trial had been listed since November 2015 to commence on 11 July 2016, with an estimated length of three to four months. Multiple directions hearings were held in the lead-up to the trial date to ensure the matter would be ready to proceed.

In June 2013, NSW Police became aware of a separate incident (referred to throughout as "the 2013 incident") that was material to at least one significant issue in the accused's trial. A dedicated task force, separate from those investigating the murder, was established to investigate that incident. The investigation generated a large volume of material between July 2013 and December 2014, but the officers investigating the murder had no direct involvement in that separate task force.

On the morning the trial was due to begin, after the jury had been empanelled, the Crown provided the accused with two large lever arch folders of documents. These documents related to the 2013 incident and had not previously been disclosed. The trial was adjourned to allow the accused to analyse the material, after which the accused applied to discharge the jury and vacate the trial.

  • Whether the late disclosure of material relevant to the accused's trial justified discharging the jury and vacating the trial date.
  • Whether the Crown had adequately complied with its disclosure obligations in the circumstances.
  • What procedural orders were appropriate to facilitate the matter proceeding to a new trial date as expeditiously as possible.

Decision

Bellew J found that the material disclosed on the morning of trial was relevant to significant issues in the accused's case, a proposition the Crown did not appear to contest. The investigation generating that material had concluded by the end of 2014, yet it was not provided to the officer in charge of the murder investigation until approximately early June 2016, and the entirety of the material did not reach the Director of Public Prosecutions until after 5 July 2016. It was then disclosed to the accused only on the first morning of trial.

The Crown placed no affidavit evidence before the court to explain the reasons for this delay. Bellew J noted that he would have been materially assisted by direct evidence addressing the chronology of events, and was left to draw inferences from the accused's evidence alone. The absence of any explanation from the Crown was treated as a significant feature of the application.

His Honour concluded that the late disclosure was so significant that the trial could not proceed. The material necessitated further subpoenas and additional pre-trial applications, meaning the trial was not in a position to continue. The accused's motions to discharge the jury and vacate the trial were granted over the Crown's opposition.

Bellew J made pointed observations about the consequences of failures to meet disclosure obligations. He noted the ripple effects across the justice system: the court's own planning was disrupted, other accused persons had been denied earlier trial dates, 15 empanelled jurors had been put to significant inconvenience, and the deceased's family would be denied closure for a further period. The murder had occurred almost seven years before the vacation of the trial, and the accused had been charged for almost six of those years.

Orders Made

  • The jury was discharged.
  • The trial date was vacated.
  • The accused's solicitor was directed to file subpoenas by 5:00 pm on 25 July 2016, directed to: the Australian Criminal Intelligence Commission (formerly the Australian Crime Commission); NSW Police; the NSW Crime Commission; and the Department of Justice (Corrective Services NSW).
  • Those subpoenas were made returnable on 8 August 2016.
  • The matter was listed for further directions on 8 August 2016.
  • The existing non-publication order was varied to permit publication of the judgment and the proceedings of 25 July 2016.

Key Takeaways

  • Late disclosure of investigation material on the first day of a long-running murder trial, without any explanation from the Crown as to the reasons for the delay, was sufficient to justify discharging a jury and vacating the trial.
  • Where the Crown does not place evidence before the court to explain a failure of disclosure, the court is left to draw inferences from whatever material the defence has tendered, and the absence of that evidence tells against the Crown.
  • A disclosure obligation extends to material held by a separate police task force that is relevant to the accused's trial, even where the officers investigating the primary offence had no direct involvement in the other investigation.
  • The consequences of a late trial vacation extend well beyond the parties: the Supreme Court emphasised harm to the court's listing resources, other accused persons awaiting trial dates, empanelled jurors who had arranged their affairs to serve, and the victim's family seeking closure.
  • Bellew J's observations underline that the obligation to disclose relevant material cannot be treated as a matter to be resolved at the last moment, particularly when the material had been in police possession for over eighteen months before trial.

Legislation and Cases Referenced

Legislation:
- Director of Public Prosecutions Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- R v Lipton [2011] NSWCCA 247; (2012) 82 NSWLR 123
- R v Solomon [2005] SASC 265; (2005) 92 SASR 331