Citation: R v Ronald Edward Medich (No. 32) [2018] NSWSC 253
Court: Supreme Court of New South Wales
Date: 1 March 2018
Judge: Bellew J
Background
The accused stood trial for murder. The Crown alleged a joint criminal enterprise in which the accused arranged the killing of the deceased. Two key Crown witnesses were Fortunato Gattellari and Senad Kaminic, both of whom gave evidence about a meeting at which another participant, Haissam Safetli, showed a newspaper bearing a photograph of the deceased and made comments about killing him.
During cross-examination of Gattellari, the defence put to him that Safetli had directed the words "You'll have to kill this guy" at Gattellari personally. Gattellari denied this ever occurred. Kaminic subsequently gave evidence confirming that the conversation took place, and in cross-examination he agreed broadly with the defence's account of what was said.
The issue arose during re-examination of Kaminic. The Crown asked him who he understood Safetli to be referring to when Safetli said, "This man is causing you a lot of problems." Kaminic answered that he understood the words to refer to the accused, not to Gattellari. The defence immediately applied to discharge the jury on the basis that this evidence represented a change in the Crown case and had not been led during examination in chief.
Legal Issues
- Whether Kaminic's re-examination evidence that he understood Safetli's words to refer to the accused (rather than to Gattellari) represented a material change in the Crown case.
- Whether that evidence, having been elicited in re-examination rather than in chief, caused irreparable prejudice to the accused sufficient to warrant discharging the jury.
- Whether the discharge of the jury was the appropriate remedy, or whether some lesser remedy sufficed.
Decision
Bellew J refused the application to discharge the jury, finding it had little merit. His Honour held that the re-examination evidence did not alter the fundamental character of the Crown case. The conversation remained, on the Crown's account, one between Safetli and Gattellari. Kaminic's understanding of who Safetli's words referred to was a separate matter from the question of who the parties to the conversation were, and the Crown had never departed from the position that Safetli was speaking to Gattellari.
His Honour characterised the defence's primary submission as a fallacy. The re-examination question was directed solely to Kaminic's subjective understanding of the conversation. That evidence did not change the identity of the speakers or the structure of the exchange as the Crown had always presented it.
On the question of prejudice, Bellew J accepted that the evidence arguably should have been led in chief. However, his Honour held that any resulting prejudice was not irreparable and was adequately remedied by granting the defence leave to conduct further cross-examination of Kaminic, which then proceeded. The characterisation of the prejudice as "irreparable" was found to overstate what had occurred.
Orders Made
No orders were made in this decision. The application to discharge the jury was refused, and leave was granted for further cross-examination of the witness.
Key Takeaways
- Refusing the discharge application, the Supreme Court held that re-examination evidence going to a witness's subjective understanding of a conversation does not necessarily alter the Crown case, provided the underlying facts of that conversation remain unchanged.
- A complaint that evidence should have been led in chief, even where well-founded, does not automatically warrant discharging the jury. A lesser remedy, such as granting leave for further cross-examination, may adequately address any resulting prejudice.
- The proposition that prejudice is "irreparable" will be scrutinised carefully; overstating the significance of a procedural irregularity will undermine an application for discharge.
- Discharge of a jury is a serious remedy. The court's reasoning confirms that it will be refused where the prejudice is remediable by other means available within the trial process.
- No objection was taken to the re-examination questions at the time they were asked, a fact Bellew J noted in the course of disposing of the application.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.