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Supreme Court 6 March 2017

R v Ronald Edward Medich (No. 20)

[2017] NSWSC 186

Public order & justice offences
CRIMINAL LAW EVIDENCE WHERE STATEMENT OF A SELF SERVING NATURE

Citation: R v Ronald Edward Medich (No. 20) [2017] NSWSC 186
Court: Supreme Court of New South Wales
Date: 6 March 2017
Judge: Bellew J

Background

At the conclusion of committal proceedings in 2013, a Magistrate found there was sufficient evidence to commit the accused to stand trial for murder and intimidation. Before the accused was committed, the Magistrate administered the standard caution and asked whether he wished to say anything in answer to the charges.

The accused elected to make a lengthy unsworn statement from the body of the court. The statement ran to several paragraphs and denied all wrongdoing, attacked the credibility of the prosecution's key witness, and offered the accused's own account of his relationships and business dealings. The accused did not give sworn evidence and called no witnesses on his behalf at the committal.

The question before Bellew J was whether that unsworn committal statement could be admitted at trial. Senior counsel for the accused argued the Crown was obliged to tender it; the Crown disputed its admissibility.

  • Whether the accused's unsworn committal statement was admissible at trial, either as evidence in chief or under the Crown's obligation to lead it
  • Whether the Evidence Act 1995 (NSW) applied to the statement, and if so, whether it was captured by the hearsay rule
  • Whether, if the statement was otherwise admissible (including via the s 60 exception for evidence led for a non-hearsay purpose), the court retained a discretion to exclude it under s 135

Decision

Bellew J examined the circumstances in which the statement was made. Unlike witness statements or admissions, the accused's unsworn committal statement was volunteered after a formal caution, without cross-examination, and in terms that were argumentative and self-serving. His Honour drew on the reasoning in R v Wood (Barr J, unreported) and distinguished R v Rymer [2005] NSWCCA 310, which concerned a different category of out-of-court statement.

Senior counsel for the accused confirmed that if the Crown did not lead the statement, the defence would not seek to tender it either. That concession shaped the analysis: the only purpose for which the evidence could be led was a non-hearsay one under s 60, namely to establish the fact that these things were said, not to prove the truth of what was asserted. On that basis, the probative value of the statement was limited.

Against that limited probative value, Bellew J identified a significant danger of unfair prejudice to the Crown. Because the statement was unsworn, the Crown would have no opportunity to cross-examine the accused on the assertions it contained. The argumentative character of parts of the statement heightened that danger further.

Applying s 135(a) of the Evidence Act 1995, his Honour concluded that the probative value of the statement was substantially outweighed by the danger of unfair prejudice to the Crown. The statement was excluded.

Orders Made

• The statement should be excluded under s. 135(a) of the Evidence Act.

Key Takeaways

  • An unsworn statement made by an accused at the close of committal proceedings is not automatically admissible at trial; its admissibility is governed by the Evidence Act 1995 and the court's discretionary exclusion powers.
  • Under s 135(a), a court may refuse to admit evidence where its probative value is substantially outweighed by the danger of unfair prejudice to a party, including prejudice to the Crown.
  • Where a self-serving, unsworn statement is tendered only for a non-hearsay purpose (to prove the words were spoken, not their truth), its probative value is correspondingly diminished, which affects the s 135 balancing exercise.
  • The inability of the opposing party to cross-examine on the contents of an out-of-court statement is a material consideration in assessing unfair prejudice, particularly where the statement is argumentative in tone.
  • Bellew J distinguished R v Rymer [2005] NSWCCA 310 on its facts, confirming that not all out-of-court statements by an accused fall within the same category for admissibility purposes.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 60, 135
- Criminal Procedure Act 1986 (NSW)
- Civil Procedure Act 2005 (NSW)
- Local Court Rules 2009 (NSW)

Cases
- R v Rymer [2005] NSWCCA 310; (2005) 156 A Crim R 84
- R v Wood (Barr J, unreported, 30 October 2008) NSWSC
- Wood v R [2012] NSWCCA 21
- Middleton v R (1998) 100 A Crim R 244
- R v Pearce (1979) 69 Cr App R 365
- Ratten v R [1972] AC 378