R v Medich (No 3) [2016] NSWSC 67

Supreme Court New South Wales

Medium Neutral Citation: R v Medich (No 3) [2016] NSWSC 67 Hearing dates: 15 February 2016 Date of orders: 15 February 2016 Decision date: 15 February 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [18] Catchwords: CRIMINAL LAW – Practice and Procedure – Accused subject to orders of Family Court freezing assets – Accused without counsel for forthcoming trial – No formal application before the Court for an adjournment of trial – Directions made – No point of principle Legislation Cited: Criminal Procedure Act 1986 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Regina – Crown Ronald Edward Medich – Accused Representation: Counsel: Ms G O'Rourke SC / Ms S Harris – Crown Mr T Daley, Solicitor - Accused

Solicitors: Director of Public Prosecutions – Crown Colin Daley Quinn, Solicitors – Accused File Number(s): 2010/356916 Publication restriction: Nil

Judgment - ex tempore (revised) 1. These proceedings have come before me this morning for directions, the trial having been listed by me last year to commence in July of 2016. Although, as events have transpired, I have not been asked to determine any particular issue or issues this morning, it is nevertheless appropriate that I record some of the background to the proceedings so as to make clear to the parties, and particularly to the accused and his representatives, my views as to the conduct of this matter from this point onwards. 2. Last week my Associate received a letter from the accused's solicitors setting out, in general terms, what were said to be difficulties the accused was experiencing accessing funds for the purposes of his forthcoming trial. Reference was made in the course of that correspondence to applications currently pending before the Family Court, in proceedings to which the accused is a party for the release of such funds. The letter confirmed that the assertions contained in it could be verified on affidavit. 3. The letter also requested that this morning's proceedings be held, not in open court, but in my chambers. In my view that application was without merit. There was, and remains, absolutely no reason why proceedings of this nature should not be held in open court. To the extent that the right of the accused to a fair trial needs to be protected, that can be adequately addressed by a non-publication order in the terms that I propose to make at the conclusion of these remarks. 4. On Friday of last week my Associate received an affidavit sworn by Peter McManus, a solicitor in the employ of the solicitors for the accused. Although it was not accompanied by a notice of motion, and although no formal application (other than an application for an adjournment of the directions hearing) has been made this morning, I granted leave to the accused's solicitor to file that affidavit in court. 5. The affidavit establishes that the accused is a party to proceedings in the Family Court. On 14 January 2011 that Court made orders restraining the accused from dealing with his financial assets. Those orders, it seems, were subsequently varied on 8 April 2014 to allow the accused to access funds for the purposes of these proceedings. An appeal was brought against the variation of those orders by the accused's former wife, the hearing of which took place before the Full Court of the Family Court of Australia in June 2015. Judgment remains reserved. 6. On 8 December 2015, eight days after I had listed the accused's trial to commence on 11 July this year, the accused filed an application to the Family Court seeking a further order releasing funds so as to allow him to fund his trial. That application was adjourned until 16 December 2015, on which date the application was further adjourned on the basis that the decision of the Full Court relating to the same issue remained reserved. Correspondence annexed to the affidavit suggests that a judgment of the Full Court may be imminent, although precisely when it is likely to be handed down is frankly anybody's guess. 7. In the intervening period Senior and Junior Counsel who had previously been retained to appear for the accused at his trial wrote to the accused's solicitor. Their correspondence is annexed to the affidavit, and I do not propose to set the entirety of it out in detail. However, it is apparent from that correspondence that as long ago as December 2015 both Counsel commenced to express concerns about the unavailability of necessary funds to facilitate the necessary preparatory work being undertaken in preparation for the accused's trial. 8. Two matters of particular significance emerge from that correspondence. Firstly, on 15 December 2015 Mr Terracini of Senior Counsel wrote to the accused's solicitors saying, in part, as follows: "I am in complete agreement with (Ms Francis') concerns about not repeating the difficulties in processing our fees that regrettably occurred last year." 1. In the absence of any evidence to the contrary, I infer from that passage of Senior Counsel's correspondence that the issue which is now faced by the accused as to the asserted difficulty in funding his trial is not a new one, and in fact has arisen in the past. 2. Of even greater significance is an email sent by Mr Terracini's clerk (but under Mr Terracini's name) to the accused's solicitor on 8 February 2016. The email makes reference to a conference held during the previous week between Mr Terracini and Mr Daley, solicitor, in respect of which Mr Terracini made the following observation: "Nothing of any substance came from our conference last week that indicates that Mr Medich has made any attempts of a serious nature to rearrange his finances or take on a short-term mortgage or enter into any structured financial arrangement to cover his legal fees for his forthcoming trial, the date of which has been well known to him since late 2015." 1. To put it bluntly, that passage does not assist the accused's position. The only available inference, in the absence of any other evidence, is that the accused has done absolutely nothing, in circumstances where he knew he was faced with some difficulty, to make alternative arrangements to fund his trial. 2. The other matter of concern is that the accused appears to assume that his application to the Family Court to access restrained funds will ultimately be resolved in his favour. That assumption begs the obvious question: What is to happen if the Family Court refuses the accused's application? Nobody, including the accused, appears to have given any consideration to that possibility. It is clear from Mr Terracini's email of 8 February 2016 that the accused has made no alternative arrangement whatsoever to cover that possibility should it arise. 3. The death of the deceased to whom this trial relates occurred seven years ago. Even in the absence of evidence being put before the Court, one can safely infer that the deceased's family, whatever the outcome of this trial, desire some degree of closure. That, of course, is not the only consideration which arises in relation to circumstances such as this. One must always bear firmly in mind the right of the accused to a fair trial. But balancing those interests, and so that all parties in this case will understand the position, I need to say the following. 4. Firstly, and subject of course to any application which the accused may wish to bring, and subject to the determination of any such application, the pre-trial hearings in this matter will commence on 2 May. 5. Secondly, and again subject to any further application which the accused may wish to bring, and subject to the determination of any such application, this trial will start on 11 July. 6. Those observations also bring me to say this: in the intervening period since the matter was last before the Court, I have taken the opportunity to familiarise myself in greater detail with the nature of the case brought against the accused, and the evidence relied upon by the Crown to support it. I have previously been told that this trial is expected to take up to four months to be completed. Needless to say, I am not appraised of the entirety of the issues in the trial. However having viewed the material, I am at a complete loss to understand why it is said that this trial is going to take four months to be completed. It seems to me that there is a great deal of material relied upon by the Crown about which there could be no dispute. I have also noted the Crown's indication this morning that no response has been forthcoming from the accused's representatives to a draft notice under s. 192 of the Evidence Act 1995 (NSW), the purpose of which was to agree upon matters which were thought to be uncontentious and which, if agreement were reached, would substantially shorten the trial. That notice was served more than a year ago. 7. In all of these circumstances, I propose to make orders facilitating, amongst other things, the service of a notice by the accused pursuant to the provisions of the Criminal Procedure Act 1986 (NSW), and the service of a response to the draft notice under s. 192. This will enable the Crown, and the Court, to make some proper assessment of what the real issues in this trial are. 8. Against that background, I make the following orders: 1. The Crown is to serve a notice pursuant to ss 141(1)(a) and 142 of the Criminal Procedure Act 1986 (NSW) by 5 pm on Monday 22 February 2016. 2. Pursuant to s. 143 of the Criminal Procedure Act 1986 (NSW) the solicitor for the accused is to serve on the Crown, and provide to my Associate, a response to the Crown's notice by 5 pm on Friday 4 March 2016. 3. The solicitor for the accused is to provide to the Crown and to my Associate a response to the draft notice previously served under section 192 of the Evidence Act 1995 (NSW) by 5 pm on 4 March 2016. 4. I list the matter for further directions before me on Monday 7 March 2016 at 9.15 am. 5. I confirm that the pre-trial applications, notice of which has previously been given, will commence before me on 2 May 2016. 6. I confirm the trial date commencing on 11 July 2016. 7. I grant liberty to either party to restore the matter to the list on 24 hours' notice at any time by contacting my Associate. 8. I direct that the accused be in attendance on all occasions on which this matter is before the Court for any purpose from this point onwards.