Supreme Court New South Wales Medium Neutral Citation: R v Ronald Edward Medich (No. 12) [2017] NSWSC 60 Hearing dates: 9 February 2017 Date of orders: 09 February 2017 Decision date: 09 February 2017 Jurisdiction: Common Law Before: Bellew J Decision: See [25]; [26] Catchwords: CRIMINAL LAW – Procedure – Accused charged with murder – Evidence given by accomplice – Where accomplice recently charged with conspiracy to extort money from accused – Where counsel for accused sought to cross-examine witness in relation to those allegations – Where witness objected to answering questions – Whether in the interests of justice that the evidence be given – Whether non-publication order should be made - Witness compelled to give the evidence Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Hamilton v Oades (1987) 11 NSWLR 138 R v Medich (No 11) [2017] NSWSC 43 R v Ronen & Ors [2004] NSWSC 1290 Category: Procedural and other rulings Parties: Regina – Crown Ronald Edward Medich – Accused Fortunato Gattellari – Applicant Representation: Counsel: Ms G O'Rourke SC and Ms S Harris – Crown Mr W Terracini SC, Ms M Curry and Mr T Quilter – Accused Solicitors: Director of Public Prosecutions, New South Wales – Crown Colin Daley Quinn – Accused File Number(s): 2010/356916 Publication restriction: Nil Judgment - EX TEMPORE (REVISED) 1. The accused is presently standing trial for the murder of Michael McGurk, and for the intimidation of Mr McGurk's wife, Kimberley. 2. An issue has arisen in relation to evidence sought to be elicited in cross-examination from the witness, Fortunato Gattellari ("Gattellari"). In one sense that issue is an extension of that which arose some days ago. Although its context is set out in a previous judgment (R v Medich (No 11) [2017] NSWSC 43) it is appropriate that I set it out again. 3. Gattellari has pleaded guilty to his role in the murder of Mr McGurk and is currently serving a sentence of imprisonment. In late December 2016 he was charged with offences of conspiracy. In very broad terms, the case against him in respect of those charges is that he entered into an agreement with a number of other persons, the object of which was to seek and/or obtain a large sum of money, said to be somewhere in the vicinity of $10 million to $15 million, from the accused, in return for not giving evidence in these proceedings. It is apparent from a number of things that Gattellari has said in the course of giving evidence thus far that he denies those allegations, and will defend them when it comes the time for his trial. 4. As I noted in the previous judgment (at [3]) it was unsurprising in the circumstances that prior to the commencement of Gattellari's cross-examination, senior counsel for the accused foreshadowed that these most recent charges would be the subject of questioning. It was equally unsurprising that when the first question going to the subject of those charges was put to Gattellari, he objected to answering it. 5. Prior to taking that position Gattellari had received the benefit of legal advice from counsel. When the objection was taken, I explained to Gattellari the effect of the provisions of s. 128 of the Evidence Act 1995 (NSW) ("the Act"). Having had those provisions explained to him, Gattellari indicated that he was willing to answer the question which had been put, and any directly related question. I indicated that in those circumstances a certificate would be given to him pursuant to s. 128 of the Act, which I explained. 6. Upon that issue being determined, an application was then made on Gattellari's behalf for a non-publication order in relation to any evidence he gave in answer to such questions. I made an interim order to that effect, but having heard full argument in relation to the matter from all interested parties, that order was subsequently discharged: R v Medich (No 11) (supra). After that judgment was delivered, Gattellari's cross-examination proceeded. Further questions were asked of him in relation to the recent charges, in the course of which a number of documents, of which he was the admitted author, were put to him. 7. In the course of such cross-examination yesterday, Gattellari indicated to me that he wished to raise another issue. In the absence of the jury he indicated to me, in effect, that notwithstanding his previously stated position, and notwithstanding the issue of a certificate under s128, he wished to renew his objection to answering the questions that were being put to him. It was the collective view of the parties that in those circumstances he should be given the opportunity to obtain further legal advice. I should indicate that in raising the matter with me, and in indicating that he wished to take a different position than that which he had adopted previously, Gattellari also indicated that if I were to compel him to answer questions put to him, he would do so. 8. Arrangements were then made for Gattellari to be provided with further legal advice from Mr Chhabra, of counsel, who has appeared before me this morning. It is appropriate that I recognise the assistance which Mr Chhabra has provided to the Court, on a completely pro bono basis, and virtually without any prior notice. To say that I am indebted to him in the circumstances would be a gross understatement. The role he has played in resolving this issue has, if I might say, been in the finest traditions of the Bar. 9. In the absence of the jury this morning, Gattellari was asked a further question by Mr Terracini, senior counsel for the accused, to which he objected. I then again explained the effect of s. 128 of the Act to him. I reached the conclusion that there were reasonable grounds for the objection, at which point Mr Gattellari informed me that he would not answer that question, or any directly related question, willingly. 10. That gives rise to the exercise of the power that s. 128 confers on me to require him to answer the question, notwithstanding his objection. That, in turn, raises consideration of the provisions of s. 128(4) of the Act and in particular, the question of whether it is in the interests of justice that the evidence be given. If I am satisfied that it is, and in circumstances where I am satisfied that the answers to questions will not tend to prove that Gattellari has committed an offence against, or arising under, a law of a foreign country, and will not tend to prove that he is liable to a civil penalty under a law of a foreign country, I have the power to compel him to answer the question. 11. Mr Chhabra advanced seven matters which, he submitted, weighed in favour of a conclusion that it was not in the interests of justice that the evidence be given. 12. Firstly, he submitted that the nature of the cross-examination was akin to a form of pre-trial interrogation. Secondly, he submitted that if he were compelled to answer the questions Gattellari would, in effect, be assisting the Crown in their prosecution against him. Thirdly, he submitted that such a method of inquiry amounted to a significant interference with the administration of justice. Fourthly, he submitted that the answers given by Gattellari had the potential to result in the disclosure of his defence in his own trial. Fifthly, he submitted that answering the questions put to him had a direct, and deleterious, effect on Gattellari's right to silence. Sixthly, and allied to the fifth matter, he submitted that compelling Gattellari to answer questions would amount to trespassing on Gattellari's right to a fair trial. Seventhly, he submitted that if compelled to give the evidence Gattellari would be subjected to undue embarrassment. 13. In developing these submissions, counsel emphasised that I should completely disregard the possibility that it may ultimately be open to Gattellari to seek a permanent stay of his trial if he were compelled to answer questions. I accept that submission. What application(s) Gattellari may make in relation to his own trial will be a matter for him. 14. Counsel emphasised that the effect of the answers being given by Gattellari assisted the Crown in its prosecution of him. Counsel emphasised that in the course of the evidence so far, several answers had already been given which had that effect. He further submitted that the overall effect of at least some of those answers given by Gattellari to those queries was that he was assisting the Crown by the disclosure his own defence. He submitted that the net effect of all of those matters was that Gattellari's right to a fair trial was prejudiced. 15. In the event that I come to the conclusion that it was in the interest of justice that the evidence be given, counsel submitted that the suggested embarrassment to Gattellari could be overcome by the imposition of an interim non-publication order. He submitted that if that course were taken, it could be re-visited at a later time in order to determine whether or not the order ought be continued, in circumstances where it would only affect the publication of the evidence for a matter of days. He advanced that as a "middle course" which would alleviate at least some of the concerns that he had expressed. 16. The Crown did not make any substantive submission in relation to the issue of whether or not it was in the interests of justice for the evidence to be given. However the Crown repeated its position which it had taken on the application for a suppression order some days ago. In adopting this position, the Crown pointed out that it did not rely upon anything said by Gattellari in cross-examination. As I commented in the course of submissions, I find that a curious, and most unhelpful, position to take. Irrespective of whether this specific evidence is relied upon by the Crown, the fact remains that the Crown has called Gattelari as a principal witness in its case. I would have been assisted by some substantive submission by the Crown on the issue whether the interests of justice in this particular case required the evidence to be given. 17. Senior counsel for the accused submitted that it was in the interests of justice that the evidence be given. He too relied on a number of matters which he had put in opposing the non-publication order which I made on an interim basis earlier this week. He also cited the fundamental fact that the present accused is standing trial for obviously serious offences. The effect of senior counsel's submission was that the interests of justice required that such an accused person be given every reasonable opportunity to ventilate any issue relevant to his defence. 18. The term "interests of justice" is necessarily a wide one. What may be in the interests of justice must be determined according to the circumstances of the particular case. In determining whether or not it is in the interests of justice that Gattellari give the evidence, there are a number of matters which are relevant. 19. Firstly, one of the charges against the accused is the most serious charge known to the criminal law. It might be reasonably anticipated that in the event that the accused is convicted of murder, a substantial term of imprisonment will be imposed. Fundamentally, he has the right to a fair trial. That right includes a right to ventilate, in the course of evidence being given, any issue(s) which are relevant to the jury's determination. 20. Secondly, there is no escaping the fact that Gattellari is the Crown's principal witness. He has pleaded guilty to his involvement in Mr McGurk's murder. The evidence that he is giving is, on my understanding of the case, vital to the position of the Crown. Even before being charged with the most recent offences, Gattellari's credit was going to be a significant issue in this trial. Indeed in my view, it was always destined to be a principal issue in the trial. The fact that he has been charged with these more recent offences renders that all the more so. All of these matters highlight the completely unsatisfactory nature of the position taken by the Crown. 21. Thirdly, the nature of the offences with which Gattellari has recently been charged, and about which he is being cross-examined, are obviously significant. The Crown case against him in respect of these charges is that he attempted to extort between $10 and $15 million from the accused, in return for not giving evidence in this very case. There is, therefore a direct link between Gattellari's role as a witness in this trial, and the charges which have been brought against him. In those circumstances, the evidence has the capacity to impact, in a substantial way, upon the jury's assessment of his credit. 22. At the same time of course, an assessment of whether it is in the interests of justice that the evidence he gave mandates that I take into account the position of Gattellari. Although he has been charged with serious criminal offences, he enjoys a presumption of innocence. There is some force in the submissions advanced on his behalf by Mr Chhabra that the present cross-examination amounts, in effect, to a process of pre-trial investigation or interrogation. The effect of counsel's submissions is encapsulated in the observations of Clarke J in Hamilton v Oades (1987) 11 NSWLR 138 at 153, are apposite: Once a charge is laid an accused person is, statutory exceptions apart, entitled to all the protection afforded by well established principles of the criminal law. In particular he is not required to submit to pretrial interrogation, nor is he amenable to the subpoena process. The Crown is obliged to prove the case against him and he is not required to assist the prosecution or to disclose his defence. It follows that the exposure of a person charged with a criminal offence to questioning which may lead to the furnishing of incriminating answers in respect of matters at the heart of the criminal charge may cause significant prejudice to the examinee and constitutes a real interference in the administration of criminal justice. 1. His Honour went on to say (at 154): I am of the opinion that the need to avoid any risk of injustice to a person charged with criminal misconduct is so compelling that, unless particular considerations in a given case dictate a contrary course, orders should be made to avoid the possibility that there is any trespass upon the charged person's right to a fair trial. 1. Those observations are of obvious force, notwithstanding the fact that they were made in a context different to that in the present case. However, the fact remains that in the event that Gattellari is compelled to answer the questions put to him he will receive the benefit of a certificate under s. 128 of the Act. The effect of that certificate will be that any evidence that he gives cannot be used against him, the only exception being in relation to proceedings arising out of the falsity of any evidence he might give. In R v Ronen & Ors [2004] NSWSC 1290 Whealy J observed (at [70]) that the protection afforded by such a certificate is "wide" and "very real." Further, s. 128 of the Act cannot be read in a way which automatically operates so as to relieve a witness of the obligation to answer questions if those questions relate to pending criminal proceedings: Ronen at [72]. 2. As I have said, a determination of what may or may not be in the interests of justice is one which must be made having regard to the overall circumstances of the case. The matters advanced on behalf of Gattellari are not without force. However in conducting the balancing exercise, and having regard in particular to the position of the accused in this trial, it is my view that it is in the interests of justice that the evidence be given. I will therefore compel Gattellari to give the evidence, with the benefit of a certificate under s. 128. 3. Mr Chhabra's alternative submission was that I make an interim order suppressing the further evidence to be given by Gattellari as to the charges laid against him. A not dissimilar application was made before me earlier this week. Having heard full argument in relation to it I came to the conclusion that the principle of open justice required that the non-publication order that I had made on an interim basis be discharged: R v Medich (No. 11) (supra). The circumstances in which I now find myself as a consequence of these most recent developments is not materially different to that with which I was faced at the time of delivering that judgment. Accordingly, for the same reasons as I gave on that occasion, I do not propose to make the order sought. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2020