Supreme Court New South Wales Medium Neutral Citation: R v Ronald Edward Medich (No. 32) [2018] NSWSC 253 Hearing dates: 1 March 2018 Date of orders: 01 March 2018 Decision date: 01 March 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [16] Catchwords: CRIMINAL LAW – Evidence – Jury – Application to discharge jury – Suggested change in the Crown case – Application refused. Category: Procedural and other rulings Parties: Regina (Crown) Ronald Edward Medich (Accused) Representation: Counsel: Ms S Harris and Ms G Wright (Crown) Mr W Terracini SC and Ms M Curry (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) Colin Daley Quinn (Accused) File Number(s): 2010/356916 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. Yesterday in the course of the re-examination of the witness Senad Kaminic, an application was made by senior counsel for the accused for the discharge of the jury. 2. In the event that I refused that application, senior counsel submitted in the alternative that he ought to be granted leave to further cross-examine Kaminic. On that occasion, I refused the first application, but granted the second and indicated that my reasons for so doing would be delivered at a later stage. Those reasons now follow. 3. In the course of cross-examination of the witness Fortunato Gattellari ("Gattellari") (at T600), Gattellari was asked questions about a conversation he had with Haissam Safetli (who is not to be called by the Crown but who was, on the Crown case, clearly a member of the joint criminal enterprise alleged against the accused) in the early part of February 2009, during which Safetli showed him a newspaper. 4. In particular, it was put to Gattellari (commencing at T600.23) that Safetli showed him a photograph of the deceased in that newspaper and said to him words to the effect: "This man is causing you a lot of trouble"..."He's causing you a lot of problems. You'll have to kill this guy". 1. Gattellari responded by saying (at T600.47): "You may suggest what you like, but it didn't happen." 1. Further cross-examination continued (at T601) culminating in the following evidence being given (at T601.24): "Q. And I suggest to you that he then said 'you', meaning you, Gattellari, will have to kill this guy? A. You can keep suggesting it all day. It never happened. Q. I suggest to you that that was in the presence of Senad Kaminic; what do you say to that? A. I've already said it, it's a nonsense." 1. In the course of the evidence in chief of Kaminic, the Crown (commencing at T1220) asked him about a meeting at Gattellari's house, at which he and Safetli were present. Kaminic said (commencing at T1220.2) that Safetli had arrived at that meeting carrying a newspaper, in which there was a photo of the deceased. The Crown then asked the following (commencing at T1220.9): "Q. At the meeting, when Gattellari asked Haissam and Bassam Safetli to follow Mr McGurk, did Haissam Safetli say something like, "This man is causing you a lot of trouble, you'll have to kill this guy"? A. Yes. Q. When he said, "This guy's causing you a lot of trouble", who did you understand him to be referring to? A. McGurk. Q. When he said that, did you or Lucky Gattellari respond to him? A. Lucky asked him, "What do you think like that?" TERRACINI: I'm sorry? CROWN PROSECUTOR WRIGHT Q. "Why do you think like that"? A. Yes. Q. Did you say anything? How did you respond? A. I don't know, but both of us were surprised why he's talking like that. Maybe also I said, "How come you're talking like that?" 1. In cross-examination senior counsel for the accused asked the following (commencing at T1295.47): "Q. Did you ever have a meeting at Gattellari's premises at Chipping Norton around about the day of your birthday where a photograph was shown of Mr McGurk? A. Yes. Q. A photograph was shown by Hais Safetli to Gattellari pointing to Mr McGurk's image in the newspaper, true? A. Yes. Yes. Q. It was during that conversation at those premises in early February 2009 that Hais Safetli said to Gattellari, "You should kill this guy"? A. Yes, approximately like that. Q. The persons present at Chipping Norton in early February when this was discussed are Gattellari, yourself, Haissam Safetli and Bassam Safetli; is that true? A. Yes. Yes. Q. Do you remember Hais Safetli also saying, speaking to Gattellari, "This fellow's causing you a lot of problems"? A. Yes, no-one else was there except us." 1. In re-examination the Crown took Kaminic to the occasion on which he had been shown the newspaper. Commencing at T1383 the following was asked: "Q. When those questions were asked of you on Monday, the word "you" was emphasised a number of times – "This man is causing you a lot of problems"; do you recall that? A. Yes. Q. When Haissam Safetli said the words, did he emphasise the word "you" at all? A. No. Q. When you heard Haissam Safetli say, while pointing to Mr McGurk's image, "This man is causing you a lot of problems", who did you understand Safetli to be referring to when he said "causing you a lot of problems"? A. To Medich. Q. Why did you have that understanding? A. Because they had the court case, they had the unresolved problems. Q. That is, Mr Medich and Mr McGurk? A. Yes." 1. I interpolate that no objection was taken to those questions when they were asked in re-examination. 2. Following re-examination, an application was made by senior counsel for the accused to discharge the jury. The essence of that application, articulated at T1390, was that this was the first occasion on which Kaminic had said that it was his understanding that when the words were said by Safetli, they referred to the accused. Senior counsel submitted, in part: "We have assumed, safely, that, at all times, the conversation is about Safetli talking to Gattellari. That has been their case from the beginning." 1. It was submitted that in all of the circumstances, there was prejudice to the accused as a result of (inter alia) the evidence which was elicited in re-examination not being adduced in chief. 2. The Crown opposed the application. The application, in my view, had little merit. The proposition that the prejudice to the accused were "irreparable", as advanced by senior counsel, overstated the significance of what occurred. 3. The primary basis of the application was the proposition articulated by senior counsel at [11] above. That proposition advanced was, in my view, something of a fallacy. The evidence elicited in re-examination did not alter the fact that on the Crown case, the conversation remained one between Safetli and Gattellari. That has been the Crown's position from the beginning. Even on the evidence of Kaminic, that proposition has never changed. The question put by the Crown was solely directed to Kaminic's understanding of the conversation. The parties to the conversation, and specifically the fact that Safetli had been talking to Gattellari, had not altered. There was absolutely no basis at all for the jury to be discharged. 4. The real complaint of senior counsel for the accused was that the evidence should have been led by the Crown in chief. Accepting for present purposes that such complaint was properly founded, it was one which was appropriately remedied by further cross-examination, which ultimately took place pursuant to a grant of leave. 5. It was for those reasons that the application to discharge the jury was refused. ********** 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: 26 April 2018