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10
Court of Criminal Appeal 18 March 2021

Medich v R

[2021] NSWCCA 36

Also reported as (2021) 390 ALR 398
Assault & violenceHomicidePublic order & justice offences
CRIMINAL LAW CONVICTION APPEALS MURDER INTIMIDATION SINGLE JOINT CRIMINAL ENTERPRISE WHETHER EVIDENCE CROSS

Citation: Medich v R [2021] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 18 March 2021
Judges: Bathurst CJ; Hoeben CJ at CL; Hamill J (dissenting in part)

Background

The appellant, Ronald Edward Medich, was convicted at his second trial before Bellew J in the Supreme Court in April 2018 on two counts: the murder of Michael McGurk on 3 September 2009, and the intimidation of McGurk's wife Kimberley McGurk on 8 August 2010. His first trial in 2017 had ended with a hung jury on both counts. He was sentenced to an aggregate 39 years' imprisonment with a non-parole period of 30 years.

The prosecution's case rested on the theory that Medich had instigated and financed a single joint criminal enterprise to murder McGurk and intimidate his widow. The key intermediary was Fortunato Gattellari, who was accepted at trial to have arranged both offences, either directly or through co-conspirators Senad Kaminic and Haissam Safetli. The central contested question was whether Gattellari had acted at Medich's direction.

Medich did not appeal his sentence, but brought a seven-ground conviction appeal. The majority dismissed the appeal. Hamill J dissented on grounds relating to evidence improperly elicited in re-examination.

  • Whether the jury verdicts on murder and intimidation were unreasonable or unable to be supported by the evidence
  • Whether a miscarriage of justice arose from the Crown Prosecutor's address to the jury concerning corroboration of the key witness's account through financial evidence
  • Whether a miscarriage of justice resulted from the trial judge's refusal to discharge the jury after inadmissible evidence was elicited from Kaminic during re-examination
  • Whether a miscarriage of justice arose from the Crown Prosecutor's cross-examination of a defence witness (Peter Medich)
  • Whether the trial judge erred in admitting certain tendency evidence
  • Whether the trial judge's directions on tendency evidence and the use of that evidence were adequate and correct

Decision

Grounds 1 and 2: Unreasonable verdicts. All three judges agreed that the verdicts could not be set aside as unreasonable. While Gattellari's evidence was described as problem-ridden, it was not the sole evidence implicating Medich. The prosecution presented powerful motive evidence, supporting conversations with other witnesses, and Kaminic's evidence, which corroborated some aspects of Gattellari's account. The jury received appropriate warnings about Gattellari's potential unreliability. Applying the principles from M v The Queen, SKA v The Queen, and Pell v The Queen, the majority held it was open to the jury to return guilty verdicts on both counts.

Ground 3: Crown Prosecutor's address on financial corroboration. The majority found the Crown Prosecutor's address was not improper. The references to financial evidence were accurate as to the transcript and to questions and answers given at trial. The Crown had not overstated the financial material as directly corroborating Gattellari's version; the material was consistent with a case that large amounts of cash were available to Gattellari. Whether or not Criminal Appeal Rule 4 applied, no miscarriage of justice was established.

Grounds 4a and 4b: Inadmissible re-examination evidence. This ground produced the only divergence between the majority and Hamill J. Bathurst CJ and Hoeben CJ at CL held that the trial judge responded appropriately to the inadvertently elicited evidence by granting leave for further cross-examination, and that the Crown did not rely on the material in its final address in a way that caused unfairness. Hamill J dissented, finding the Crown Prosecutor had exceeded permissible re-examination, that the evidence was inadmissible as both hearsay and opinion, and that a miscarriage of justice had occurred. The dissent also concluded that Rule 4 of the Criminal Appeal Rules should not operate to prevent the ground being raised, given that an application to discharge the jury had been made almost immediately.

Remaining grounds (5, 6, 7): Cross-examination, tendency evidence, and directions. The majority rejected these grounds. On ground 5, no objection had been taken at trial to the cross-examination of Peter Medich, Rule 4 applied, and the issue was peripheral in the context of a lengthy contested trial. On the tendency and directions grounds, the majority found no error in the admission or use of the tendency evidence, and no inadequacy in the trial judge's directions to the jury.

Orders Made

  • Leave to appeal against conviction is granted.
  • The appeal against conviction is dismissed.

Key Takeaways

  • In dismissing the conviction appeal by majority, the Court of Criminal Appeal confirmed that a verdict is not unreasonable merely because a key prosecution witness gave evidence that was heavily contested or credibility-challenged, provided other independent evidence of motive and involvement exists and the jury received appropriate warnings.
  • A Crown Prosecutor's closing address does not constitute a miscarriage of justice where the statements made about financial evidence were accurate summaries of what was in evidence, even if that evidence was complex or disputed.
  • Where inadmissible evidence is elicited in re-examination, the trial judge's decision to remedy the situation by granting further cross-examination rather than discharging the jury may be sufficient, but the Court was not unanimous on this point: Hamill J found this response inadequate in the circumstances and would have upheld the ground.
  • Criminal Appeal Rule 4, which generally requires a party to have objected at trial before raising a ground on appeal, applied to exclude grounds 5 and 4b from the majority's consideration, reinforcing that failure to object during trial carries significant consequences on appeal.
  • Sufficient evidence existed, including financial records, phone intercepts, and the evidence of multiple witnesses, to sustain a finding beyond reasonable doubt that Medich was the originator and financier of the criminal enterprise, notwithstanding conflicting accounts among those directly involved.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 38, 97, 128, 137

Key Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
- Weiss v R (2005) 224 CLR 300; [2005] HCA 81
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Crofts v R (1996) 186 CLR 427; [1996] HCA 22
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
- Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303
- Armstrong v R [2013] NSWCCA 113
- BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47
- Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36