Citation: R v Ronald Edward Medich (No. 34) [2018] NSWSC 281
Court: Supreme Court of New South Wales
Date: 7 March 2018
Judge: Bellew J
Background
The accused stood trial for murder. The Crown's principal witness was Fortunato Gattellari, who had already given evidence. The witness at the centre of this ruling was Gattellari's son, Loren Gattellari, who was alleged to have played a role in conveying a demand for $1 million to the accused's son, in what the defence characterised as an attempted blackmail by Fortunato Gattellari following his arrest.
Senior counsel for the accused sought to cross-examine the younger Gattellari on whether he had ever been involved in forging the accused's signature. The evidentiary basis for this line of questioning came from a recorded conversation between Fortunato Gattellari and another witness, Senad Kaminic, and from Kaminic's own evidence that Loren Gattellari was "skilled with copies" and had copied signatures in the past.
The Crown objected to the proposed cross-examination on the grounds of relevance, arguing the test under section 103 of the Evidence Act 1995 (NSW) had not been met. Bellew J resolved the objection in a short ex tempore ruling.
Legal Issues
- Whether proposed cross-examination of Loren Gattellari about alleged forgery of the accused's signature was permitted under section 103 of the Evidence Act 1995 (NSW)
- Whether the evidence could substantially affect the assessment of the witness's credibility, as section 103(1) requires
- How to weigh the mandatory considerations under section 103(2): whether the evidence tended to prove a knowing or reckless false representation, and the significance of the passage of time
- Whether the Court of Criminal Appeal's decision in R v ATM [2000] NSWCCA 475 precluded the line of questioning
Decision
Bellew J allowed the questions. His Honour outlined three principles governing section 103: the word "substantially" must be given its full force, meaning the jury's assessment of credibility cannot be properly made without the evidence; the word "could" directs attention to the capacity of the evidence to affect credibility, not whether it actually does so; and the question must be resolved on the assumption that the witness will answer affirmatively, following R v Beattie (1996) 40 NSWLR 155.
Applying the mandatory considerations in section 103(2), his Honour found the first factor (whether the evidence tends to prove a knowing or reckless false representation) favoured the accused. If the witness admitted to forging a signature, that admission would itself constitute evidence of a false representation. The second factor, the passage of time (the events occurred approximately eight to ten years earlier), weighed against allowing the questions, but his Honour held that it had to be weighed against the nature of the allegation itself.
The credit of the witness was a significant issue in the trial, particularly given his alleged role in the attempted blackmail. The allegation sought to be put was one of dishonesty, which Bellew J regarded as a factor weighing heavily in favour of permitting the cross-examination.
His Honour distinguished the Crown's reliance on R v ATM. In that case, Howie J's comments about the admissibility of similar forgery evidence were obiter, made in the context of assessing whether jury verdicts were unreasonable. The decision was not authority for any general proposition that cross-examination of this nature should be refused, and on the facts of the present case it provided little assistance.
Orders Made
• Allow the questions to be put to the witness under section 103 of the Evidence Act
Key Takeaways
- Under section 103 of the Evidence Act 1995 (NSW), the word "could" focuses on the capacity of evidence to substantially affect credibility, not on whether it actually does so in the particular case.
- When ruling on a section 103 objection, the court must proceed on the assumption that the witness will answer the proposed questions affirmatively, as confirmed in R v Beattie.
- Allegations of dishonest conduct, such as forgery, carry significant weight in the section 103 analysis, particularly where the witness's credit is a central issue at trial.
- The passage of time since the alleged events is a mandatory consideration under section 103(2)(b), but it does not operate as a decisive factor and must be weighed against the seriousness and nature of the allegation.
- The Court of Criminal Appeal's comments in R v ATM about the admissibility of forgery evidence were obiter and do not stand as general authority against permitting cross-examination of this kind in every case.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 103, 128
Cases
- R v ATM [2000] NSWCCA 475
- R v Beattie (1996) 40 NSWLR 155
- R v Ronen [2004] NSWSC 1290