Citation: R v Ronald Edward Medich (No. 29) [2018] NSWSC 133
Court: Supreme Court of New South Wales
Date: 15 February 2018
Judge(s): Bellew J
Background
The accused stood trial for the murder of Michael McGurk and the intimidation of McGurk's widow. The Crown's principal witness was Fortunato Gattellari, who had previously pleaded guilty to the same murder and was serving a prison sentence while giving evidence for the prosecution over several days.
In late 2016, Gattellari was separately charged with two counts of conspiracy to defraud the accused. The Crown case in those pending District Court proceedings was that Gattellari had allegedly agreed with co-conspirators to demand millions of dollars from the accused in exchange for tailoring his evidence in the current murder trial to help the accused avoid conviction.
When cross-examination by senior counsel for the accused reached questions about those pending charges, Gattellari declined to answer. His counsel appeared and submitted that it was not in the interests of justice to compel him to respond. Bellew J had addressed the same issue during an earlier mistrial of the same accused (R v Medich (No. 12) [2017] NSWSC 60) and was now asked to reconsider the question in light of further submissions.
Legal Issues
- Whether it was in the "interests of justice" under section 128 of the Evidence Act 1995 (NSW) to compel Gattellari to answer cross-examination questions about pending conspiracy charges against him.
- Whether a certificate issued under section 128(5) provided sufficient protection for Gattellari, or was "imperfect" in the manner his counsel argued.
- Whether compelling the evidence would impermissibly alter the accusatorial process, relying on X7 v Australian Crime Commission (2013) 248 CLR 92.
- Whether the subject matter of the questions was sufficiently relevant to the accused's trial, given that it went only to Gattellari's credit rather than to any element of the charges directly.
Decision
Bellew J held that it was in the interests of justice to direct Gattellari to answer the question asked and any related question. His Honour applied the same reasoning he had set out in Medich (No. 12), finding that the circumstances had not changed in any way that would alter that conclusion. The additional submissions made on Gattellari's behalf did not disturb that outcome.
His Honour rejected the submission that a section 128 certificate was "imperfect." Relying on Whealy J's observations in R v Ronen & Ors [2004] NSWSC 1290, Bellew J confirmed that the protection afforded by such a certificate is wide and very real, and that section 128 does not automatically relieve a witness of the obligation to answer simply because the questions touch on pending criminal proceedings.
On the concern that the prosecution team in Gattellari's upcoming trial would be "forewarned and forearmed," his Honour found this overlooked the essential point: any evidence Gattellari gave in the current proceedings could not be used against him. Bellew J added that he expected the Director of Public Prosecutions to take steps to appropriately quarantine those prosecuting Gattellari from any such evidence.
Bellew J accepted that the questions went to credit rather than directly to the elements of the murder charge, but found this distinction did not weigh against compulsion. The direct link between Gattellari's role as a witness in this trial, his credibility, and the substance of the conspiracy allegations, namely that he had allegedly sought to corrupt his own evidence in these very proceedings, meant that the evidence had substantial capacity to affect the jury's assessment of his credit.
Orders Made
• Gattellari be required to answer the question and any related question
Key Takeaways
- Under section 128 of the Evidence Act 1995 (NSW), a court may compel a witness to answer questions even where doing so risks self-incrimination, provided it is satisfied the interests of justice require it; that determination turns on the specific circumstances of each case.
- A certificate issued under section 128(5) provides wide and real protection to a compelled witness: it prevents the evidence being used against that witness in subsequent proceedings, and does not become "imperfect" merely because a future prosecutor might become aware of the evidence.
- Where a key Crown witness's credibility is directly and substantially linked to the subject matter of pending criminal charges, the interests of justice will ordinarily favour compelling answers to cross-examination on those charges, even where the questions go to credit alone rather than to an element of the charge.
- The High Court's reasoning in X7 v Australian Crime Commission (2013) 248 CLR 92 regarding the accusatorial process did not, in Bellew J's view, operate to relieve Gattellari of the obligation to answer in the circumstances of this trial.
- Concerns about prosecutorial "forewarning" can be addressed by the Director of Public Prosecutions quarantining the prosecution team in the witness's separate trial from evidence given under compulsion in the current proceedings.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), particularly s 128 (compellability and certificates for self-incriminating evidence) and s 128(5) (certificates)
- Coroners Act 2009 (NSW), s 61
Cases
- R v Medich (No. 12) [2017] NSWSC 60
- R v Ronen & Ors [2004] NSWSC 1290
- Rich v Attorney General for New South Wales & Ors [2013] NSWCA 419
- X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29