Citation: R v Ronald Edward Medich (No. 14) [2017] NSWSC 80
Court: Supreme Court of New South Wales
Date: 14 February 2017
Judge(s): Bellew J
Background
The accused stood trial for the murder of Michael McGurk. A key Crown witness, Fortunato Gattellari, gave evidence about money he alleged the accused had provided to fund the murder and related activities.
During cross-examination, defence counsel explored a discrepancy between the amounts Gattellari said he received from the accused and the amounts expended on the murder. In the course of those answers, Gattellari referred to "other events" and "other matters" for which he had also received money, describing persons the accused was "unsatisfied with" and wanted "sorted out."
The Crown then sought to re-examine Gattellari on that evidence, with the ultimate question being whether those "other matters" involved paying people to approach the individuals the accused was dissatisfied with. Defence counsel objected, and Bellew J ruled on the admissibility of the proposed re-examination.
Legal Issues
- Whether the proposed re-examination fell within the permissible scope of re-examination under s 39 of the Evidence Act 1995 (NSW)
- Whether the probative value of the evidence to be elicited in re-examination was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW), such that exclusion was mandatory
Decision
Defence counsel conceded that the proposed re-examination was relevant and arose squarely from the cross-examination, satisfying s 39 of the Act. The dispute therefore turned entirely on whether s 137 required exclusion.
Bellew J found the probative value of the proposed re-examination question to be low. The substance of what the Crown sought to elicit, namely that money had gone to other people to have third parties "sorted out," was already plainly evident from answers Gattellari had given during cross-examination. Permitting the question would have done little more than restate evidence already before the jury, providing no meaningful clarification.
By contrast, his Honour found the danger of unfair prejudice to the accused to be significant. There was a real risk that restating the evidence would cause the jury to attach more weight to it than was warranted. More critically, there was a tangible risk of an impermissible chain of reasoning: that because the accused had paid money to have other people "sorted out," he had taken the same approach toward the deceased. That reasoning would amount to propensity reasoning of the kind that is not permitted.
Because the probative value was outweighed by the danger of unfair prejudice, s 137 mandated exclusion and the re-examination was refused.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a court must exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the accused, regardless of whether that evidence arose in cross-examination.
- The fact that evidence is elicited in cross-examination does not automatically entitle the Crown to pursue the same evidence further in re-examination.
- Where the expected answer to a proposed re-examination question would merely restate what is already evident from the cross-examination, its probative value is low and may not justify the prejudice its repetition would cause.
- A real danger of impermissible propensity reasoning, specifically that a jury might reason the accused acted consistently with prior conduct toward other parties, was treated as a significant form of unfair prejudice in this ruling.
- Bellew J's reasoning illustrates that the s 137 balancing exercise applies with full force to re-examination, not only to evidence led in chief.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 39 (re-examination limited to matters arising from cross-examination)
- Evidence Act 1995 (NSW), s 137 (exclusion of evidence where probative value is outweighed by danger of unfair prejudice to the accused)
Cases cited: None cited in the judgment.