Citation: R v Ronald Edward Medich (No. 30) [2018] NSWSC 206
Court: Supreme Court of New South Wales
Date: 22 February 2018
Judge(s): Bellew J
Background
The accused stood trial in the Supreme Court charged with the murder of Michael McGurk and the intimidation of McGurk's wife. The Crown's case was that the accused organised and financed both the murder and the intimidation. The principal Crown witness, Fortunato Gattellari, had previously pleaded guilty to his involvement in the murder and was serving his sentence at the time of giving evidence.
Gattellari's credit was a central issue throughout the trial. During lengthy cross-examination, defence counsel put to Gattellari that a $100,000 payment deposited into his account from a business associated with Mick Gatto had nothing to do with the accused: that the accused was unaware of the payment, that Gattellari had personally pressured Gatto to make it, and that Gattellari had no entitlement to the funds. Gattellari denied each of these propositions and maintained that the accused was aware of the repayment and had authorised how the funds were used.
Near the close of cross-examination, the Crown foreshadowed an intention to lead, in re-examination or through other witnesses, a series of intercepted telephone conversations and related documents. Defence counsel objected. The court was required to determine whether that material could properly be adduced.
Legal Issues
- Whether the intercepted telephone conversations and related documents arose sufficiently from the cross-examination so as to be admissible in re-examination.
- Whether the evidence was relevant to matters raised in cross-examination, particularly the propositions put to Gattellari about the $100,000 payment.
- Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused, including any prejudice arising from the notoriety of Mick Gatto.
Decision
Bellew J ruled that the admissibility of the contested material turned on whether it arose from cross-examination. His Honour examined the specific propositions put to Gattellari during cross-examination: that the accused did not know about the $100,000 repayment, that Gattellari had pressured Gatto to make it, and that Gattellari had no entitlement to the funds. These propositions had been squarely put and denied, making Gattellari's credit on those matters directly in issue.
The court divided the nine disputed conversations into two groups. The conversations in the first group were found to be directly relevant to the propositions put in cross-examination. They were capable of establishing that the accused did loan Gatto $300,000, that Gatto repaid $100,000 of that amount, that the accused was aware of the repayment, and that Gattellari had not pressured Gatto to make the payment. All of these matters corroborated Gattellari's evidence on points his credit had been attacked. The conversations in the second group (apart from two to which the defence had ultimately withdrawn objection) were excluded.
On the question of unfair prejudice, the court accepted that the evidence would be prejudicial to the accused's case in the ordinary sense, but was not satisfied that it created a danger of unfair prejudice within the meaning of the Evidence Act 1995 (NSW). The submission that Gatto's notoriety could prejudice the accused was addressed by noting that no evidence of any conduct rendering Gatto notorious would be placed before the jury. The court also rejected the argument that prejudice arose from the inability to cross-examine the officer through whom the calls would be played, observing that this situation was common with intercepted communications and created no danger of unfair prejudice.
Orders Made
- The intercepted telephone conversations in the first group were admitted into evidence.
- The intercepted telephone conversations in the second group were excluded, except for the two calls to which the defence had withdrawn its objection.
Key Takeaways
- Re-examination is properly available where cross-examination has raised specific factual propositions that the witness denied; intercepted conversations capable of corroborating those denials can arise sufficiently from that cross-examination to be admissible.
- Where a witness's credit is a principal issue at trial, evidence that corroborates the witness on the precise matters challenged in cross-examination carries high probative value.
- A distinction exists between evidence that is prejudicial to the accused's case and evidence that creates a danger of "unfair" prejudice; the Supreme Court confirmed these are not the same thing, and only the latter warrants exclusion.
- The inability to cross-examine a witness about the content of intercepted communications does not, of itself, give rise to unfair prejudice, as this situation is common to evidence of this nature.
- Directions to the jury about deciding the case on the evidence, rather than on a witness's reputation or notoriety, can form part of the court's reasoning in finding that no danger of unfair prejudice exists.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- IMM v R (2016) 257 CLR 300; [2016] HCA 14
- Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
- Wentworth v Rogers (No 10) (1987) 8 NSWLR 398
- R v Yates [2002] NSWCCA 520
- Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348; (2005) 224 ALR 317
- Hadid & Anor v Australis Media Ltd & Anor (No 14) (Supreme Court (NSW), Sperling J, 5 November 1996, unrep)
- Schipp v Cameron & Ors (No 2) (Supreme Court (NSW), Einstein J, 8 October 1997, unrep)
- R v Lavery (No 2) (1979) 20 SASR 430
- R v Chambers (1848) 3 Cox CC 92