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Supreme Court 5 April 2017

R v Ronald Edward Medich (No. 25)

[2017] NSWSC 356

Homicide
CRIMINAL LAW PRACTICE AND PROCEDURE DIRECTIONS TO JURY WHETHER A “MURRAY DIRECTION” WARRANTED OFFENDER

Citation: R v Ronald Edward Medich (No. 25) [2017] NSWSC 356
Court: Supreme Court of New South Wales
Date: 5 April 2017
Judge: Bellew J

Background

This decision arose in the course of a murder trial before Bellew J. At the close of evidence, and before final addresses commenced, the judge held discussions with the Crown and senior counsel for the accused about the appropriate jury directions to be given during the summing-up.

The Crown's case rested substantially on the evidence of Lucky Gattellari, a witness who had been criminally involved in the events in question. Two other witnesses, Glen McNamara (called by the defence) and Joseph Prestia (called by the Crown), also gave evidence on discrete issues. Directions concerning all three witnesses were in dispute.

The judge delivered ex tempore reasons at the time, then provided written reasons later explaining each conclusion reached.

  • Whether a warning under s 165(1) of the Evidence Act 1995 (NSW) was required in respect of McNamara's evidence
  • Whether a warning under s 165(1) was required in respect of Prestia's evidence
  • Whether a "Murray direction" (directing the jury to scrutinise the evidence of a single witness with great care) was warranted in relation to Gattellari
  • Whether the jury should be directed that it would be "dangerous to convict" the accused on Gattellari's uncorroborated evidence

Decision

Section 165 warnings: McNamara and Prestia

Bellew J declined to give a s 165 warning in respect of either witness. The section is not directed at ordinary credibility concerns such as vagueness, inconsistency, a motive to lie, or demeanour. Rather, it is designed for cases where the potential unreliability of evidence is of a kind more apparent to a trial judge than to a jury, or where the jury might overestimate probative value. Neither McNamara nor Prestia gave evidence implicating the accused, and there was nothing about their evidence that fell outside the jury's ordinary capacity to assess.

An additional consideration applied to McNamara specifically. Although s 165 can in principle apply to defence witnesses, the cases indicate it will rarely be appropriate to warn against a defence witness, because the section is typically concerned with evidence that implicates the accused. McNamara's evidence was called on a discrete credibility issue and did not fall into that category.

Murray direction

Bellew J accepted that a Murray direction was appropriate. The principle from R v Murray (1987) holds that in serious criminal cases, where a single witness asserts the commission of the crime, the jury should be directed to scrutinise that evidence with great care. The Crown relied principally on Gattellari's evidence, and this was especially significant in relation to the murder count. The fact that a s 165(1)(d) warning (concerning potentially unreliable accomplice-type evidence) was already to be given did not, in the circumstances, displace the need for a separate Murray direction, because the two directions address distinct matters.

"Dangerous to convict" direction

Bellew J declined to direct the jury that it would be dangerous to convict on Gattellari's uncorroborated evidence. At common law, such a direction was once standard for accomplice evidence. Section 165(1)(d) now replaces that common law approach, and critically, the presence or absence of corroboration plays no part in the modern statutory warning. While a judge retains a discretion to use the "dangerous to convict" formulation where circumstances are truly exceptional, the Court of Criminal Appeal has consistently said that formulation should be avoided since the enactment of s 165. The circumstances here, namely that Gattellari was criminally involved and was the principal Crown witness, were not sufficiently exceptional to warrant that language, particularly given some independent corroboration existed in relation to the second count on the indictment.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Section 165 of the Evidence Act 1995 (NSW) is not a code, but it is not engaged merely because a witness raises ordinary credibility concerns. The section targets unreliability of a kind that would be more apparent to a trial judge than to a jury, or where the jury might overestimate probative value.

  • A s 165 warning will rarely be appropriate for a defence witness, because the section is typically directed at evidence implicating the accused. Evidence given on a discrete credibility issue by a non-implicating witness is unlikely to attract the warning.

  • A Murray direction and a s 165(1)(d) warning address distinct concerns and can both be warranted in the same trial. The existence of one does not automatically render the other unnecessary.

  • Since the enactment of s 165, the "dangerous to convict" formulation from common law accomplice directions should be avoided unless circumstances are truly exceptional. The fact that the principal Crown witness was criminally involved in the relevant events does not, without more, meet that threshold.

  • Under s 165(1)(d), corroboration is irrelevant. If a witness was supposedly criminally involved in the relevant events, the statutory warning that their evidence may be unreliable is required on request, regardless of whether corroborating evidence exists.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 165(1)

Cases
- R v Murray (1987) 11 NSWLR 12
- R v Baartman [2000] NSWCCA 298
- R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260
- R v Ayoub [2004] NSWCCA 209
- Kanaan & Ors v R [2006] NSWCCA 109
- Robinson v R [2006] NSWCCA 192
- GAR v R (No. 2) [2010] NSWCCA 164
- Stojcevski v R [2012] NSWCCA 27