Citation: R v Ronald Edward Medich (No. 41) [2018] NSWSC 375
Court: Supreme Court of New South Wales
Date: 23 March 2018
Judge: Bellew J
Background
The accused stood trial on an indictment including a charge of murder and a charge of intimidation. The Crown's case was that the accused bore deep animosity toward the deceased, arising from protracted litigation between them, and that this animosity provided a motive for the alleged murder. Following the deceased's death, his wife continued the litigation and was herself, on the Crown case, the subject of intimidation by the accused.
The alleged intimidation arose from a visit to the deceased's wife at her home in August 2010, during which a person told her to "do the right thing" and repay her husband's debts. The only person to whom the deceased owed money at the time of his death was, on uncontested evidence, the accused.
The Crown sought to tender an intercepted telephone conversation from 23 June 2010 between the accused and an associate, David Vereker. In the call, the accused made various statements about the deceased's wife, including references to money having been stolen and demands that she "get out of my bloody life" and return the money. The accused's legal team objected to the tender of this evidence.
Legal Issues
- Whether the intercepted telephone conversation between the accused and his associate was admissible as relevant evidence going to both counts in the indictment.
- Whether the court was required to exclude the evidence under s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused.
- Whether any unfair prejudice arose specifically from the Crown's decision not to call the other party to the conversation, David Vereker, as a witness.
Decision
Bellew J confirmed the evidence was relevant and admissible, having reached that conclusion at the end of oral argument on 15 March 2018. These reasons elaborated on that conclusion. His Honour found the conversation carried significant probative value in relation to both counts: the accused's references to stolen money and his demands directed at the deceased's wife aligned closely with the terms of the alleged intimidation, and the overall tone of the call reflected a considerable degree of hostility.
The accused's senior counsel accepted relevance but pressed for exclusion under s 137, arguing the evidence had little probative value and was highly prejudicial. Counsel submitted the accused was merely discussing the existing court proceedings for recovery of money, and that the absence of Mr Vereker as a Crown witness made it unfair to interpret the accused's statements without further explanation. Bellew J rejected both limbs of that submission.
On probative value, his Honour held that the accused's stated context of ongoing litigation did not dilute the probative value of the conversation in any way. The statutory definition in the dictionary to the Evidence Act focuses on the extent to which evidence "could rationally affect" the assessment of a fact in issue, and the conversation plainly satisfied that test.
On unfair prejudice, Bellew J emphasised the distinction between evidence that is merely prejudicial and evidence that creates a danger of unfair prejudice. Every piece of Crown evidence that supports the prosecution case is prejudicial to the accused in the ordinary sense; that alone does not engage s 137. On the question of Mr Vereker's absence, his Honour observed that Mr Vereker could not in any event be cross-examined about his interpretation of what the accused said. The accused's own words were clear and unequivocal, and it would be for the jury to determine what weight to attach to them.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), the accused bears the onus of establishing that the probative value of the evidence is outweighed by the danger of unfair prejudice; the Crown does not bear that burden (following R v DG (2010) 28 VR 127).
- The statutory definition of "probative value" turns on whether evidence could rationally affect the assessment of the probability of a fact in issue, setting a threshold that the intercepted call in this case readily satisfied.
- A finding that evidence is prejudicial to an accused does not, without more, mandate exclusion under s 137; the relevant question is whether the prejudice is unfair, and those concepts are distinct.
- The Crown's decision not to call the other party to an intercepted conversation does not in itself give rise to unfair prejudice, particularly where the accused's own statements in that conversation are clear and unequivocal, and the absent witness could not have been cross-examined about his interpretation of those statements.
- Intercepted calls in which an accused expresses hostility toward the victim or other persons connected to the alleged offence may carry significant probative value going to both motive and the particulars of a separately charged offence arising from the same circumstances.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137 (exclusion of prejudicial evidence in criminal proceedings) and dictionary definition of "probative value"
Cases
- R v DG (2010) 28 VR 127