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Supreme Court 7 February 2017

R v Ronald Edward Medich (No. 11)

[2017] NSWSC 43

Homicide
CRIMINAL LAW PROCEDURE ACCUSED CHARGED WITH MURDER ORDER NOT NECESSARY INTERIM ORDER DISCHARGED

Citation: R v Ronald Edward Medich (No. 11) [2017] NSWSC 43
Court: Supreme Court of New South Wales
Date: 7 February 2017
Judge: Bellew J

Background

The accused stood trial for the murder of Michael McGurk in September 2009. The Crown's principal witness had pleaded guilty to his role in the murder and was serving a sentence that reflected a 60 per cent discount for his plea and assistance to authorities.

In late December 2016, shortly before the commencement of the accused's trial, the witness was charged with conspiracy offences. The allegation was that he had entered into an agreement with others to extract a payment of between $10 and $15 million from the accused in exchange for not giving evidence. The witness denied the allegations and indicated he would plead not guilty.

When cross-examination on those charges began, the witness initially objected to answering questions. Bellew J explained the operation of section 128 of the Evidence Act 1995 (NSW), after which the witness agreed to answer willingly, in exchange for a certificate to be issued at the conclusion of his evidence. Counsel for the witness then applied for a non-publication order covering that portion of the cross-examination.

  • Whether a non-publication order over the witness's cross-examination evidence about the conspiracy charges was "necessary to prevent prejudice to the proper administration of justice" under section 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW).
  • Whether publication of the evidence would undermine or circumvent the protection afforded to the witness by a certificate issued under section 128 of the Evidence Act 1995 (NSW).
  • Whether the risk of prejudice to the witness's future trial was sufficiently substantial and immediate to justify continuing the interim non-publication order.

Decision

Bellew J discharged the interim non-publication order made the previous day. His Honour accepted that the open justice principle is not absolute, but concluded that the applicant had not established that a non-publication order was "necessary" within the meaning of section 8(1)(a). Drawing on the Court of Criminal Appeal's analysis of that word in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125, his Honour applied a high threshold, requiring more than a possibility or risk of prejudice.

Two factors weighed significantly against continuing the order. First, the "fade effect": given the likely delay before the witness faced his own trial, any prejudicial impact from publication would diminish substantially over time before a jury was empanelled. Second, standard jury directions, including directions to disregard prior media reporting and to decide the case only on the evidence, would address any residual risk. His Honour noted the assumption underlying criminal trials that jurors comply with their oath and follow judicial directions, referring to Gilbert v R [2000] HCA 15.

On the section 128 certificate point, his Honour rejected the submission that publication would circumvent or dilute the certificate's protection. The certificate would prevent the evidence being used against the witness regardless of publication. Any attempt by a juror to make derivative use of that evidence would be inconsistent with the juror's oath and would be addressed by the trial judge's directions.

His Honour also noted that those representing the witness at his future trial retained the ability to seek further relief at that time, including orders for suppression of the witness's name from court lists or removal of published material from the internet.

Orders Made

  • The order made on 6 February 2017 preventing publication of evidence given in cross-examination by the witness is discharged.

Key Takeaways

  • The Supreme Court applied a high threshold for the word "necessary" under section 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), consistent with the Court of Criminal Appeal's analysis in Fairfax Digital. A risk or possibility of prejudice does not, of itself, satisfy that test.
  • A certificate issued under section 128 of the Evidence Act 1995 (NSW) prevents compelled evidence being used against the witness in future proceedings. Publication of that evidence does not circumvent or diminish the certificate's legal effect.
  • The "fade effect" of media reporting is a recognised factor in assessing prejudice: where a witness's trial is not imminent, prejudicial publicity may lose its potency well before a jury is empanelled.
  • Standard jury directions to disregard media coverage and to decide the case on the evidence remain a significant counterweight to claims of publication-related prejudice, supported by the foundational assumption that jurors act in accordance with their oath.
  • A witness does not have a freestanding right to be represented by counsel in proceedings, though a court retains discretion to hear submissions from counsel for a witness in appropriate circumstances.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 128 (certificate protecting compelled self-incriminating evidence)
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8(1)(a) (grounds for suppression or non-publication orders)

Cases:
- Fairfax Digital Australia & New Zealand Pty Ltd & Ors v Ibrahim [2012] NSWCCA 125; (2012) 293 ALR 384 (meaning of "necessary" in s 8(1)(a))
- Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 (assumption that jurors act on their oath and follow directions)