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Supreme Court 14 March 2018

R v Ronald Edward Medich (No. 38)

[2018] NSWSC 322

HomicidePublic order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE WITNESSES POWER OF THE COURT TO DO SO WHETHER TO CALL THE WITNESS

Citation: R v Ronald Edward Medich (No. 38) [2018] NSWSC 322
Court: Supreme Court of New South Wales
Date: 14 March 2018
Judge(s): Bellew J

Background

The accused faced trial for the murder of Michael McGurk and the intimidation of McGurk's wife. The Crown's principal witness was a co-offender who had pleaded guilty to involvement in the murder and was serving his sentence at the time of trial.

A further potential witness, Shayne Hatfield, was a prisoner serving a lengthy term for drug importation offences. He had been made available for cross-examination at the accused's first trial, where his conduct was described by Bellew J as pre-meditated, wholly calculated non-compliance, culminating in the recitation of a nursery rhyme in direct defiance of a judicial direction to answer questions. He was removed from the courtroom and recalled the following day, when he apologised and gave evidence, though he displayed an obvious predisposition to make adverse statements about the Crown's principal witness at every opportunity.

Following the first trial, the Crown informed the defence in writing that it would not call Hatfield or make him available for cross-examination in the retrial, citing his unreliability. The defence filed a notice of motion seeking either a temporary stay of proceedings until the Crown agreed to call Hatfield, or an order that the court itself call him.

  • Whether the Crown's refusal to call Hatfield, or to make him available for cross-examination, was justified on unreliability grounds.
  • Whether the court held power to order that Hatfield be called as a witness, and if so, whether the circumstances were exceptional enough to exercise that power.
  • Whether a temporary stay of proceedings should be granted to compel the Crown's hand.

Decision

Bellew J confirmed that the Crown holds the primary responsibility for deciding which witnesses to call, but noted that this responsibility is not absolute. The court retains a power to direct that a witness be called, though that power is to be exercised only in exceptional circumstances.

The judge reviewed Hatfield's conduct during the first trial in considerable detail. His initial contemptuous refusal to answer questions, his apparent change of attitude only after likely receiving legal advice about the parole consequences of a contempt charge, and his evident hostility toward the Crown's key witness all pointed strongly to unreliability. Bellew J accepted the Crown's assessment that Hatfield was an unreliable witness and found that the Crown's decision not to call him was justified.

On the question of the court's own power to call Hatfield, Bellew J was not satisfied that the case was sufficiently exceptional to warrant exercising that power. He also noted that at the previous trial, senior counsel for the accused had sought, in closing address, to distance himself from at least some of Hatfield's evidence, a circumstance that weighed against the submission that calling Hatfield was essential to a fair trial.

As to the temporary stay application, Bellew J accepted that the court holds inherent power to stay proceedings temporarily to prevent injustice, but found no unfairness to the accused arising from the Crown's position. The principles governing the calling of witnesses were held to be instructive in the stay analysis as well. Both limbs of the motion were refused.

Orders Made

  • The notice of motion was dismissed.

Key Takeaways

  • The Crown holds primary responsibility for deciding which witnesses to call, but that responsibility is not absolute: the court retains a residual power to direct that a witness be called, exercisable only in exceptional circumstances.
  • A finding of witness unreliability can justify the Crown's decision not to call a witness or make that witness available for cross-examination, provided the decision is genuinely grounded in that assessment.
  • Refusing to grant a temporary stay, Bellew J confirmed that a stay will only be ordered to the extent necessary to relieve against unfair consequences, and that no such unfairness arose where the Crown's decision to exclude the witness was justified.
  • The principles governing when a court may call a witness are also relevant to the exercise of the discretion to grant a temporary stay directed at achieving the same outcome.
  • A witness's conduct during an earlier trial, including deliberate non-compliance with judicial directions and apparent partiality, may constitute a proper foundation for the Crown to characterise that witness as unreliable in a subsequent retrial.

Legislation and Cases Referenced

Cases:
- Diehm v DPP (Nauru) [2013] HCA 42; 303 ALR 42
- Lane v R [2013] NSWCCA 317; 241 A Crim R 321
- MacDonald v R; Maitland v R (2016) 93 NSWLR 736; [2016] NSWCCA 306
- R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
- R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
- R v O'Brien [1996] SASC 6172; 66 SASR 396
- R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
- Richardson v R (1974) 131 CLR 116; [1974] HCA 19
- Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42

Legislation: No specific legislation was cited in the material provided.