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Supreme Court 9 December 2016

R v Medich (No 8)

[2016] NSWSC 1713

HomicidePublic order & justice offences
CRIMINAL LAW EVIDENCE WHETHER EVIDENCE ADMISSIBLE EVIDENCE ADMITTED CRIMINAL LAW EVIDENCE EVIDENCE NOT ADMITTED CRIMINAL LAW

Citation: R v Medich (No 8) [2016] NSWSC 1713
Court: Supreme Court of New South Wales
Date: 9 December 2016
Judge(s): Bellew J

Background

The accused faced two charges on an indictment: the murder of a business associate in September 2009 and the intimidation of the deceased's wife in August 2010. The Crown alleged the accused recruited a close friend and business associate, referred to here as the principal Crown witness, to arrange and finance both the killing and the subsequent intimidation campaign.

The underlying context was a bitterly acrimonious business relationship between the accused and the deceased. The two men had become embroiled in multiple civil proceedings against each other, each claiming the other owed him substantial sums. The Crown alleged the accused's motive for the murder was to resolve that dispute and to "save face" after believing he had been swindled of millions of dollars.

Ahead of the trial, listed to commence on 30 January 2017, the Crown sought to lead evidence about two relationships: the relationship between the accused and the deceased, and the relationship between the accused and the principal Crown witness. The accused objected to the admission of that evidence, prompting this pre-trial ruling.

  • Whether representations made by the deceased about his relationship with the accused were admissible, including under the hearsay and state of mind exceptions in the Evidence Act 1995 (NSW)
  • Whether statements the deceased made to his wife shortly before his death were admissible
  • Whether statements the deceased made to a journalist shortly before his death were admissible
  • Whether evidence of the relationship between the accused and the principal Crown witness was admissible, including evidence of alleged threatening conduct carried out on the accused's behalf during debt collection

Decision

Representations of the deceased (general relationship evidence)

Bellew J found that much of the evidence concerning the relationship between the accused and the deceased was admissible. The nature and deterioration of that relationship was directly relevant to the Crown's case on motive, a fact clearly in issue. The court was satisfied this evidence met the admissibility threshold and posed no undue risk of unfair prejudice.

Statements made to the deceased's wife

The Crown sought to rely on statements the deceased had made to his wife about his relationship with the accused. Bellew J ruled this evidence inadmissible. The court was not satisfied the requirements for admission were met on the material presented.

Statements made to a journalist

The deceased gave statements to a journalist shortly before his death. The Crown argued these fell within the state of mind exception, as expressions of the deceased's feelings, intentions, or knowledge under s 72 of the Evidence Act 1995. Bellew J rejected that characterisation. On close analysis, the statements amounted to the deceased's opinion about the accused's intentions, not statements of the deceased's own state of mind. The state of mind of the deceased was not a fact in issue, nor was it relevantly connected to one. The journalist's evidence on this point was therefore excluded.

Evidence of the relationship between the accused and the principal Crown witness

Bellew J accepted that the nature and extent of the relationship between the accused and the principal Crown witness was clearly probative of facts in issue, particularly given the anticipated credibility attack on that witness. The majority of this evidence was admitted. However, evidence that debt collection activities involved the communication of threats to third parties on behalf of the accused was excluded under s 137 of the Evidence Act 1995. The court was satisfied that admitting evidence of threatening conduct carried a real risk of inviting impermissible propensity reasoning by the jury: namely, that because the accused had authorised threatening behaviour in one context, he was more likely to have committed the charged offences.

Orders Made

• Evidence of the deceased's statements to Ms McClymont regarding the accused's intentions will not be admitted

• Evidence of the relationship between the accused and Gattellari is admissible

• Evidence concerning debt collection activities allegedly carried out by Gattellari at the accused's request is admissible to the extent it relates to the nature and extent of their relationship

• Evidence of threats allegedly communicated by Gattellari on behalf of the accused is excluded pursuant to s. 137 of the Evidence Act

Key Takeaways

  • Bellew J drew a clear distinction between a deceased's statements expressing their own state of mind and statements expressing an opinion about another person's intentions. Only the former can engage the state of mind exception under the Evidence Act 1995; the latter are not admissible on that basis.

  • The relevance requirement is a threshold condition: even if evidence of a deceased's state of mind might technically fit a hearsay exception, it remains inadmissible if that state of mind is not itself a fact in issue or directly relevant to one.

  • Under s 137 of the Evidence Act 1995, probative evidence may still be excluded where its admission would create an unacceptable risk of propensity reasoning by the jury, particularly in serious criminal trials where the jury may impermissibly reason from prior bad conduct to guilt on the charged offences.

  • Relationship evidence between a Crown witness and an accused can be highly probative and admissible, especially where that witness's credibility is expected to be a central battleground at trial.

  • A court can admit part of a category of evidence while excluding other parts of it: here, general debt-collection evidence was admitted to illuminate the relationship, but the specific allegation that threats were made in connection with those activities was severed and excluded.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Evidence Act 1995 (NSW), ss 72, 137

Cases
- IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14
- Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Hillier (2004) 154 ACTR 46; [2004] ACTSC 81
- R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377
- Ratten v The Queen [1972] AC 378
- Seven Network Limited v News Limited (No 8) [2005] FCA 1348
- Standen v R [2015] NSWCCA 211
- Wilson v The Queen (1970) 123 CLR 334; [1970] ALR 687