Citation: R v Ronald Edward Medich (No. 17) [2017] NSWSC 170
Court: Supreme Court of New South Wales
Date: 24 February 2017
Judge: Bellew J
Background
The accused stood trial for the murder of the deceased. A central plank of the Crown case was that the accused had a motive to kill, arising from a seriously deteriorated relationship between the two men. The Crown sought to call Paul Mathieson, the founder of a company called Amazing Loans, who had a financial relationship with the accused involving a $25 million loan facility and whose relationship with the accused had also soured over time.
Mathieson had given evidence at the committal proceedings in 2013 and had been cross-examined there over some 21 transcript pages. By the time of trial, he was living outside Australia and dividing his time between two countries. Police discovered he was briefly in Australia when he was a passenger on a plane at Adelaide Airport awaiting departure, but an urgent subpoena could not be served before the aircraft left.
The Crown applied to place Mathieson's committal evidence before the jury in his absence. The evidence was said to be relevant to establishing the deterioration in the relationship between the accused and the deceased, which the Crown relied upon as part of its motive case.
Legal Issues
- Whether Mathieson was "not available" to give evidence for the purposes of s 65 of the Evidence Act 1995 (NSW)
- Whether the accused had a reasonable opportunity to cross-examine Mathieson at the committal, satisfying s 65(3) of the Evidence Act
- Whether the prior committal evidence could alternatively be admitted as a deposition under s 285 of the Criminal Procedure Act 1986 (NSW)
- Whether the probative value of Mathieson's evidence was substantially outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act, such that the evidence should be excluded
Decision
Bellew J admitted the evidence under s 65(3) of the Evidence Act. The accused's senior counsel did not contest that Mathieson was "not available" within the meaning of the Act, nor raise any objection to notice requirements under s 67. Critically, counsel for the accused had cross-examined Mathieson at the committal over 21 pages of transcript, satisfying the requirement that the accused had a reasonable opportunity (and had in fact taken that opportunity) to cross-examine the witness.
The defence argued that the committal cross-examination had been constrained by a prior agreement between the parties governing its scope under s 91 of the Criminal Procedure Act, and by the limitations inherent in Mathieson having given evidence via audio-visual link from the United States. Bellew J acknowledged these factors but was not persuaded they were sufficient to displace the conclusion that a reasonable opportunity to cross-examine had existed and been exercised.
On the s 137 question, his Honour found the probative value of the evidence to be high. Mathieson's evidence bore directly on the deterioration of the relationship between the accused and the deceased, which lay at the heart of the Crown's motive case. The court was not satisfied there was any danger of unfair prejudice, noting that any Crown evidence is likely to be prejudicial to some degree, but that there was no risk of the evidence being misused or given undue weight. A direction to the jury not to speculate about the circumstances of Mathieson's absence or his prior AVL evidence was considered sufficient to address any residual concern.
Bellew J also noted, without strictly needing to decide the point, that the evidence would equally have been admissible under s 285 of the Criminal Procedure Act. The accused's senior counsel had conceded all statutory prerequisites to that section were satisfied. The court observed that, once those prerequisites are met, there is no residual general discretion to reject such evidence under s 285, and s 137 of the Evidence Act was the only live exclusionary consideration, which his Honour had already resolved in favour of admission.
Orders Made
• Evidence of Mathieson to be admitted and put before the jury
Key Takeaways
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Under s 65(3) of the Evidence Act 1995 (NSW), prior committal evidence from an unavailable witness is admissible at trial where the accused had a reasonable opportunity to cross-examine that witness, even if the cross-examination was conducted via audio-visual link or subject to an agreed scope under s 91 of the Criminal Procedure Act.
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Constraints on committal cross-examination, such as agreed limitations between parties or the practical difficulties of AVL evidence, do not automatically defeat the "reasonable opportunity" threshold in s 65(3); the court will assess the totality of the circumstances.
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Where all statutory prerequisites under s 285 of the Criminal Procedure Act 1986 (NSW) are conceded or established, there is no general discretion to refuse admission of a deposition, consistent with R v Stackelroth (1996) 86 A Crim R 438; section 137 of the Evidence Act remains the only available basis for exclusion at that point.
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Section 137 of the Evidence Act requires exclusion only where probative value is substantially outweighed by danger of unfair prejudice. The Supreme Court confirmed that the inevitably prejudicial nature of Crown evidence does not, of itself, satisfy that threshold.
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Jury directions can be an appropriate safeguard against speculative reasoning arising from a witness's absence from trial or prior use of AVL, reducing the risk that such circumstances generate unfair prejudice to the accused.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 65, 67, 137
- Criminal Procedure Act 1986 (NSW), ss 72, 91, 285
Cases
- Director of Public Prosecutions v BB [2010] VSCA 211
- R v Stackelroth (1996) 86 A Crim R 438