Citation: R v Ronald Edward Medich (No. 22) [2017] NSWSC 248
Court: Supreme Court of New South Wales
Date: 14 March 2017
Judge(s): Bellew J
Background
The accused stood trial for murder. As part of the defence case, the accused's son was called as a witness, and senior counsel for the accused sought to tender a recorded telephone conversation between the accused and his son that had taken place on 16 October 2010. The conversation had been intercepted by police acting under a warrant obtained during the investigation.
The conversation concerned a newspaper article that reportedly stated police did not consider the accused to be involved in the murder. During the exchange, the accused expressed scepticism that a third party, Gattellari, could have been involved in the killing, describing the suggestion as "bullshit."
The Crown objected to admission of the conversation on the grounds of irrelevance. In the alternative, the Crown submitted that even if the evidence were relevant, it should be excluded under section 135(b) of the Evidence Act 1995 (NSW) because its probative value was substantially outweighed by the danger of it being misleading or confusing.
Legal Issues
- Whether the recorded telephone conversation, or any part of it, was relevant within the meaning of section 55 of the Evidence Act 1995 (NSW)
- Whether, if relevant, the evidence should be excluded under section 135(b) of the Act on discretionary grounds
Decision
Bellew J focused the analysis on the threshold question of relevance under section 55 of the Act. That provision requires that evidence, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. The section has been described as setting a wide test.
The defence argued that the bolded passage of the conversation was relevant to the nature of the relationship between the accused and Gattellari, a matter put in issue through cross-examination. His Honour rejected that argument. The bolded passage amounted to no more than the accused expressing a personal opinion about who may or may not have been responsible for the murder. That opinion could have no rational bearing on any fact in issue, and the question of responsibility was one for the jury, not the accused.
As for the remainder of the conversation, Bellew J found it even more remote from any fact in issue. A discussion between the accused and his son about the contents of a newspaper article, including whether that article was favourable to the accused, was entirely irrelevant. The son's opinion about the article, and the accused's responses to it, bore no rational connection to any matter the jury was required to determine.
Because the evidence was excluded as irrelevant, Bellew J did not need to address the Crown's alternative argument under section 135(b).
Orders Made
No formal orders were recorded in the provided text beyond the ruling that the evidence was excluded.
Key Takeaways
- Under section 55 of the Evidence Act 1995 (NSW), evidence must be capable of rationally affecting the probability of a fact in issue, even if only indirectly, to satisfy the relevance threshold.
- An accused person's post-offence opinion about who was responsible for the alleged crime is not a fact in issue; that determination belongs to the jury and cannot be made relevant simply by framing it as bearing on a witness's credibility or the parties' relationship.
- A conversation about the contents of a newspaper article, including any opinions expressed in that article about the accused's involvement, did not meet the relevance threshold where no rational connection to a fact in issue could be identified.
- The Supreme Court declined to reach the discretionary exclusion question under section 135(b) once it was satisfied the evidence failed at the relevance stage, illustrating the logical priority of the relevance inquiry.
- Relevance arguments built on contextual or peripheral connections will not succeed where the core content of the evidence relates only to matters outside the jury's fact-finding task.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), sections 55 and 135(b)
Cases:
- Zaknic v Svelte Corporation Pty Ltd (1995) 61 FCR 171