Citation: R v Ronald Edward Medich (No. 12) [2017] NSWSC 60
Court: Supreme Court of New South Wales
Date: 9 February 2017
Judge: Bellew J
Background
The accused stood trial for the murder of Michael McGurk and the intimidation of McGurk's wife. A key Crown witness, Fortunato Gattellari, had already pleaded guilty to his own role in the murder and was serving a sentence of imprisonment when he was called to give evidence.
In late December 2016, Gattellari was separately charged with conspiracy offences. The prosecution case on those charges alleged that he had entered into an agreement with others to extort a sum in the range of $10 to $15 million from the accused, in exchange for not giving evidence at the murder trial. Gattellari denied the allegations and indicated he intended to defend them at his own trial.
Senior counsel for the accused sought to cross-examine Gattellari about those conspiracy charges. Gattellari objected, having taken legal advice, raising concerns about self-incrimination and his right to a fair trial in the separate proceedings. The court had to resolve whether Gattellari could be compelled to answer.
Legal Issues
- Whether it was in the interests of justice, within the meaning of s 128(4) of the Evidence Act 1995 (NSW), to compel Gattellari to answer questions that could tend to incriminate him in the pending conspiracy proceedings
- Whether a non-publication order should be made over any evidence Gattellari gave in response to those questions
Decision
Bellew J explained to Gattellari the operation of s 128 on two separate occasions. On the first occasion, Gattellari agreed to answer questions and a certificate was issued. He later renewed his objection and ultimately indicated he would not answer questions willingly, even after further legal advice was obtained. Counsel appearing pro bono for Gattellari advanced seven reasons against compelling the evidence, including that it amounted to pre-trial interrogation, assisted the Crown in its prosecution of Gattellari, risked disclosing his defence, and infringed his rights to silence and a fair trial.
His Honour acknowledged that those arguments carried some force. However, conducting the required balancing exercise, and giving particular weight to the position of the accused in the murder trial, the court concluded that it was in the interests of justice that the evidence be given. The court noted that s 128 cannot be read as automatically relieving a witness of the obligation to answer questions simply because those questions relate to pending criminal proceedings, citing Whealy J's observations in R v Ronen & Ors [2004] NSWSC 1290.
The protection afforded by a certificate under s 128 was central to the court's reasoning. Once issued, that certificate prevents the compelled evidence from being used against Gattellari in subsequent proceedings, with the only exception being proceedings for giving false evidence. The court described this protection as "wide" and "very real." Gattellari was therefore compelled to answer, with the benefit of a s 128 certificate.
On the non-publication application, Bellew J declined to make a suppression or non-publication order. The court had discharged an earlier interim non-publication order in R v Medich (No 11) [2017] NSWSC 43, finding that the principle of open justice required it. The circumstances had not materially changed, and the court applied the same reasoning to refuse the renewed application.
Orders Made
• Compel Gattellari to give evidence with the benefit of a certificate under s. 128 of the Act
• Discharge the non-publication order that had been made on an interim basis
Key Takeaways
- Under s 128(4) of the Evidence Act 1995 (NSW), a court may compel a witness to answer self-incriminating questions where it is satisfied it is in the interests of justice to do so, and the answers will not tend to prove liability under a foreign law.
- The interests of justice assessment requires a balancing exercise across the overall circumstances of the case, including the position of the accused in the principal trial, not only the interests of the witness who objects.
- Section 128 does not operate automatically to relieve a witness of the obligation to answer questions merely because those questions relate to pending criminal proceedings in which the witness is the defendant, as confirmed in R v Ronen & Ors.
- A s 128 certificate provides substantial protection: compelled evidence generally cannot be used against the witness in future proceedings, except in proceedings arising from the falsity of that evidence.
- The principle of open justice will ordinarily defeat an application for a non-publication order over compelled testimony, absent materially different circumstances warranting suppression.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 128
Cases
- R v Medich (No 11) [2017] NSWSC 43
- R v Ronen & Ors [2004] NSWSC 1290
- Hamilton v Oades (1987) 11 NSWLR 138