Supreme Court New South Wales Medium Neutral Citation: R v Ronald Edward Medich (No. 17) [2017] NSWSC 170 Hearing dates: 24 February 2017 Date of orders: 24 February 2017 Decision date: 24 February 2017 Jurisdiction: Common Law Before: Bellew J Decision: See [29] Catchwords: CRIMINAL LAW – Evidence – Where witness gave evidence at committal hearing – Where witness now unavailable – Whether Crown should be permitted to rely upon evidence given at committal – Whether accused had a reasonable opportunity to cross-examine the witness at committal – Whether the probative value of the evidence was outweighed by danger of unfair prejudice to accused –Evidence admitted Legislation Cited: Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Director of Public Prosecutions v BB [2010] VSCA 211 R v Stackelroth (1996) 86 A Crim R 438 Category: Procedural and other rulings Parties: Regina – Crown Ronald Edward Medich – Accused 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 Crown seeks to call evidence from Paul Mathieson ("Mathieson") in its case. Mathieson is the founder of a company called Amazing Loans. At one point he entered into an agreement with the accused, pursuant to which the accused provided a loan facility in a sum of $25 million to the company, which was publicly listed. Mathieson's evidence is that his relationship with the accused subsequently soured. 2. The evidence sought to be led from Mathieson by the Crown will include evidence of representations said to have been made to him by the deceased, in the course of which the deceased is said to have expressed his general dislike of the accused. In particular, the Crown will seek to lead evidence from Mathieson of a meeting that he had with the deceased, in the course of which the deceased put to him a proposal, the effect of which was to damage the accused. This evidence is relied upon by the Crown to establish the deterioration in the relationship between the deceased and the accused. Mathieson's evidence will also include statements made to him by the accused regarding the deceased. 3. Mathieson gave evidence at the committal proceedings in 2013 and was cross-examined. Although the position is not entirely clear, it appears that he now lives outside Australia and divides his time between two different countries. The Crown indicated in the course of previous discussions about his evidence that he is generally uncooperative. That is consistent with some of the statements he made in the course of giving evidence in the committal proceedings, which reflect a generally difficult approach. 4. Earlier this week the police became aware that Mathieson was in Australia. At that time I was asked to issue an urgent subpoena seeking his attendance before the court today, in circumstances where I was told that he was a passenger on an aeroplane which was sitting on the tarmac at Adelaide Airport waiting to depart for New Zealand. The subpoena was issued. However for reasons which are not entirely clear, the flight departed before the subpoena could be served. 5. In all of those circumstances, the Crown seeks to put before the jury the statements made by Mathieson to police (or at least extracts of them) which were tendered in the committal proceedings, as well as his oral evidence. 6. In support of its application, the Crown relied upon two statutory provisions. The first, upon which the Crown principally relied, was s. 65(3) of the Evidence Act 1995 (NSW) ("the Act"): 65 Exception: criminal proceedings if maker not available …. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. 1. The second was s. 285 of the Criminal Procedure Act 1986 (NSW) ("the CPA"): 285 Depositions tendered by prosecution (1) A deposition may be admitted as evidence for the prosecution at the trial of an accused person on proof on oath of each of the following matters: (a) that the deponent: (i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent's life, or (ii) is absent from Australia, (b) that the deposition was recorded: (i) by or in the presence of the Judge before whom it was taken, and (ii) in the presence of the accused person or during any period when the accused person (having been excused under section 72) was absent, (c) that the accused person, or his or her Australian legal practitioner, had full opportunity to cross-examine the witness, or that the accused person (having been excused under section 72) was absent when the deposition was taken and was not represented by an Australian legal practitioner. (2) The deposition: (a) must be in writing, signed by the Judge by or before whom the deposition was taken, or (b) must be in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions. (3) If the deposition is in the form of a written transcript referred to in subsection (2) (b), it must be proved on oath: (a) that the record so made is a true record of the matter so deposed, and (b) that the transcript of the record is a correct transcript of that record. (4) If it appears from the deposition: (a) that it was made in the presence of the accused person, and (b) that the accused person, or his or her Australian legal practitioner, had full opportunity to cross-examine the witness, the deposition is taken to have been so made and the accused person, or his or her Australian legal practitioner, is taken to have had such an opportunity, unless proved to the contrary. (5) If it appears from the deposition: (a) that it was made while the accused person (having been excused under section 72) was absent, and (b) that the accused person was not represented by an Australian legal practitioner at that time, the deposition is taken to have been so made and the accused person is taken to have not been represented by an Australian legal practitioner, unless proved to the contrary. (6) In this section: "Judge" includes a coroner holding office under the Coroners Act 2009 . 1. Section 65 of the Act applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. The Dictionary to the Act provides, amongst other things, that a person is taken not to be available to give evidence about a fact if (inter alia) all reasonable steps have been taken by the relevant party to find the person, or to secure his or her attendance. 2. No issue has been taken by senior counsel for the accused that Mathieson is a person who is "not available" for the purposes of s. 65. It should also be noted that although reliance on s. 65 is subject to the notice provisions in s. 67, senior counsel for the accused expressly stated that he did not raise the absence of prior notice as an issue. 3. There is no dispute that the accused was represented by senior counsel at the committal proceedings, and that senior counsel had an opportunity to (and did) cross-examine Mathieson. Indeed, that cross-examination covers some 21 pages of transcript, in the course of which questions were put to Mathieson in relation to a number of different issues. 4. In these circumstances the Crown submitted that the provisions of s. 65(3) of the Act were satisfied. It was submitted that not only did the accused, through his counsel, have a reasonable opportunity to cross-examine Mathieson, senior counsel in fact availed himself of that opportunity. 5. To the extent that the Crown relied on s. 285 of the CPA, it was submitted that in light of concessions made by senior counsel for the accused, all of the prerequisites to the operation of that section were satisfied. It was submitted that the authorities supported the proposition that upon that position being reached, the Crown could place the evidence before the jury, subject only to s. 137 of the Act which mandates the exclusion of the evidence if its probative value is substantially outweighed by the danger of unfair prejudice to the accused. The Crown accepted that s. 137 was also a relevant consideration in terms of its reliance upon s.65. 6. In that regard, the Crown submitted that in all of the circumstances, and given the issues in the trial, the probative value of Mathieson's evidence was high. In particular, the Crown submitted that if the evidence was accepted, it established that at a particular point in time the relationship between the deceased and the accused had "soured" to a significant extent. The deterioration of such relationship is one of the matters relied upon by the Crown to establish that the accused had a motive to kill the deceased. 7. As I have noted, senior counsel for the accused raised no issue regarding the prerequisites to the operation of s. 285. He also raised no issue that Mathieson was not available for the purpose of s. 65. Senior counsel's submissions concentrated on s. 137 of the Act and various matters arising out of Mathieson's appearance at the committal. 8. Senior Counsel submitted that the cross-examination of Mathieson at the committal had been restricted by virtue of the agreement which had been reached between the parties pursuant to s. 91 of the CPA, and which governed the ambit of such cross-examination. It was also pointed out that during the course of the committal proceedings Mathieson had given evidence via AVL from the United States, and that the cross-examination of him was necessarily subject to the limitations which generally arise from that procedure. 9. It was submitted that by reason of those two factors in particular, the accused's opportunity to cross-examine Mathieson was at the very least, limited. I should point out that even if the accused did not have a full opportunity in that regard, the provisions of s. 65(3)(b) of the Act make reference to having a "reasonable" opportunity to do so. I accept that a full opportunity is a pre-condition to the admissibility of the evidence under s. 285(1)(c) of the CPA. However senior counsel accepted that all of the pre-requisites to the operation of s. 285 had been met. 10. Senior counsel also submitted that the quality of Mathieson's evidence was "questionable". He submitted that a reading of the transcript of Mathieson's evidence at the committal hearing made it clear that Mathieson was, on a number of occasions, argumentative, evasive and non-responsive in his answers to question put to him. Senior counsel also pointed to a number of instances in which Mathieson, in response to such questions, sought to raise the relevance of what was being put. 11. It was further submitted that Mathieson's credit was a significant issue in these proceedings. It was submitted that if his evidence was put before the jury in his absence the jury would be left in a position where they were required to assess an important issue of credit in the absence of having had the advantage of seeing or hearing Mathieson give evidence. It was submitted that any warning which might be given to the jury in relation to that, would not be sufficient to overcome the danger of unfair prejudice to the accused. It was submitted that in all of these circumstances there was a real danger that the jury would speculate as to why Mathieson gave evidence via AVL at the committal, and why he was not giving evidence in person at the trial. 12. Finally, senior counsel cited a number of instances in the course of the committal proceedings where Mathieson had given evidence which was both irrelevant and clearly prejudicial to the accused. He pointed, by way of example, to occasions on which Mathieson, in answering questions, had made gratuitous and non-responsive comments about being in fear of the accused. It should be noted that the Crown has properly conceded that statements of that nature could not possibly be admissible and would not be pressed in the event that I granted the present application. 13. In assessing the competing positions of the parties there are a number of observations which should be made. 14. One of the submissions advanced on behalf of the accused was that the restrictions placed on Mathieson's cross-examination at the committal (by virtue of the s. 91 agreement) were such that the opportunity that the accused had to cross-examine him was neither full nor reasonable. The s. 91 agreement was not tendered on this application. As I am unaware of its content, I am in no position to assess what the parameters of the cross-examination of Mathieson might have been. What can be said however, is that the cross-examination of Mathieson was extensive. A reading of the transcript of his evidence makes it clear that he was cross-examined in relation to a number of issues, including threats said to have been made by Gattellari. Indeed at one point in the cross-examination the Crown is recorded as objecting to questioning, on the basis that what was being put fell outside the terms of the s. 91 agreement. It is noteworthy that the Magistrate, without specifically deciding the issue, allowed the cross-examination to proceed. 15. In enacting s. 65(3) of the Act, the legislature placed conditions on its application which require that the accused either cross-examined the witness, or had a reasonable opportunity of doing so. The legislature also anticipated a situation where the evidence would be admissible, even in circumstances where there was in fact no cross-examination of the witness at all: Director of Public Prosecutions v BB [2010] VSCA 211 at [16]. For the reasons set out, the accused had a more than reasonable opportunity. 16. It was also suggested by senior counsel for the accused that there were now matters which were sought to be ventilated with Mathieson in cross-examination which were not the subject of questioning at the committal. The nature of those matters was not further articulated and as I have said, the s. 91 agreement was not tendered. In those circumstances, not only am I unable to determine the extent of any limits on cross-examination which were imposed upon counsel by the s. 91 argument, I am also not able to determine the nature and extent of any further subject matter which might be intended to be the subject of further cross-examination. 17. As to the asserted "questionable quality" of Mathieson's evidence, that is a matter for the jury. The jury will be directed, in the event that Mathieson's evidence is admitted, about the caution with which they must approach the task of assessing it. They will be directed, in particular, that they have not had the benefit of seeing Mathieson, or hearing his evidence tested in cross-examination. They will be directed that they must take into account all of those matters when assessing the reliability of the evidence. Further, and although the matter has not yet been the subject of specific argument, it would seem to me that Mathieson's evidence would necessarily attract a warning pursuant to s. 165(1)(a) of the Act because of its hearsay nature. On the assumption that such warning was given, it would provide a further caution to the jury as to the manner in which the assessment of the evidence is to be approached. 18. I am not satisfied that there is any basis for suggesting that in the event that the evidence is admitted there is a danger that the jury will speculate as to why Mathieson gave evidence via AVL at the committal, or why he is not giving evidence in person at the accused's trial. The jury will be directed that they are not to speculate as to those matters. There is no reason to think that any such warning will be ignored. 19. In terms of s. 137 of the Act, in my view the probative value of the evidence of Mathieson is high. As I have said, it is the Crown case that the accused was motivated to organise the killing of the deceased because (inter alia) his relationship had deteriorated. Mathieson's evidence goes to (inter alia) that very issue. 20. Moreover, I am not satisfied that there is any danger of unfair prejudice to the accused if the evidence is admitted. As has been observed on a number of occasions in the past, any evidence in a Crown case against an accused is likely to be prejudicial to some degree. There is no danger of the evidence being misused, or affording more weight than is warranted. 21. For all of those reasons, I am satisfied that the provisions of s. 65(3) of the Act allow the admission of the evidence, and that there is no basis upon which to exclude it. Further, and although it is not strictly necessary for me to do so, I should observe that had I been required to determine the issue on the basis of the Crown's reliance upon the provisions of s. 285 of the CPA, I would have reached the same conclusion. It was expressly conceded on behalf of the accused that the statutory prerequisites to that section had been satisfied. Once that point is reached, the authorities make it clear that the provisions of the section allow the Crown to rely upon the evidence. Importantly, there is authority for the proposition that there is no room to read into the provisions of s. 285 any general discretion to reject the evidence (see R v Stackelroth [1996] 86 A Crim R 438 at 441 per Hunt CJ at CL) although s. 137 of the Act remains a relevant consideration. It was accepted by senior counsel for the accused that the only live issue in terms of the Crown's reliance on s. 285 of the CPA was whether or not s 137 was engaged. For the reasons I have expressed, s. 137 does not mandate the exclusion of the evidence. 22. For all of those reasons I propose to allow the evidence of Mathieson to be put before the jury. ********** 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: 24 April 2018