Citation: R v Ronald Edward Medich (No. 21) [2017] NSWSC 199
Court: Supreme Court of New South Wales
Date: 7 March 2017
Judge: Bellew J
Background
The accused stood trial in the Supreme Court on serious criminal charges. The Crown re-called a witness, Fortunato Gattellari, to give evidence about statements he allegedly made at a meeting held at Cooma Correctional Centre. That meeting involved a number of persons, and another witness, Shayne Hatfield, had already given evidence about what Gattellari allegedly said there.
The difficulty was that answering the Crown's questions risked exposing Gattellari himself to criminal liability. Section 128 of the Evidence Act 1995 (NSW) directly addresses this situation: it provides a mechanism by which a court can compel a witness to answer self-incriminating questions and then issue a certificate that protects the witness from having those answers used against them in later proceedings.
This was not the first time this issue had arisen in the trial. Bellew J had previously dealt with the same objection from Gattellari in R v Medich (No 12) [2017] NSWSC 60, and the current judgment followed that earlier reasoning.
Legal Issues
- Whether Gattellari's answers to the Crown's questions tended to prove that he had committed an offence, thereby engaging s 128 of the Evidence Act 1995 (NSW)
- Whether, given Gattellari's objection to answering the questions, it was in the interests of justice to compel him to do so
- Whether a certificate under s 128 should be granted to Gattellari at the conclusion of his evidence
Decision
Bellew J found that the questions posed to Gattellari did tend to prove the commission of an offence by him, bringing s 128 of the Evidence Act into play. Gattellari confirmed on this occasion, as he had done partway through his earlier evidence, that he objected to answering the questions and would not do so willingly.
Applying the same reasoning set out in R v Medich (No 12), Bellew J was satisfied that it was in the interests of justice for the evidence to be given. The Court therefore ordered that Gattellari be compelled to answer the questions posed by the Crown.
Bellew J indicated that, at the conclusion of Gattellari's evidence, a certificate would be granted to him under s 128. That certificate would provide Gattellari with the statutory protection afforded by that provision, the nature of which had been explained to him on multiple occasions. The Court noted that Gattellari had also received legal advice on the matter.
Orders Made
• Gattellari will be compelled to answer the questions
• A certificate will be granted pursuant to s. 128 of the Evidence Act 1995 (NSW) at the conclusion of his evidence
Key Takeaways
- Under s 128 of the Evidence Act 1995 (NSW), a court may compel a witness to answer questions that tend to prove the witness committed an offence, provided the court is satisfied it is in the interests of justice to do so.
- Where a witness objects to answering self-incriminating questions, the court retains the power to override that objection and order the witness to answer, accompanied by the protection of a s 128 certificate.
- A section 128 certificate does not prevent the Crown from compelling the evidence; it protects the witness from having those compelled answers used against them in subsequent proceedings.
- The Supreme Court confirmed its earlier reasoning from R v Medich (No 12) [2017] NSWSC 60, applying the same interests-of-justice analysis on the second occasion the objection arose in the same trial.
- The fact that a witness had received legal advice about the operation of s 128 was a relevant background consideration, though it did not affect the Court's power to compel the evidence.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 128
Cases
- R v Medich (No 12) [2017] NSWSC 60