Supreme Court New South Wales Medium Neutral Citation: R v Ronald Edward Medich (No. 33) [2018] NSWSC 268 Hearing dates: 6 March 2018 Date of orders: 06 March 2018 Decision date: 06 March 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [23] Catchwords: CRIMINAL LAW – Evidence – Re-examination – Re- establishing credibility – Considerations bearing upon a grant of leave Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Leung v the Queen [2003] NSWCCA 51 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 New South Wales (Crown) Colin Daley Quinn (Accused) File Number(s): 2010/356916 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. An issue has arisen in the course of the Crown's re-examination of Kim Shipley, the former accountant of a number of companies (referred to collectively in the course of the trial as "the electrical companies") in which the accused had a financial interest. 2. In evidence in chief (commencing at T1457.7) Mr Shipley said the following: "Q. Had you heard the accused and Mr Gattellari speaking of Mr McGurk? A. From time to time. Q. From your contact with the accused, did you have an understanding that there had been or was some dispute between Mr McGurk and the accused? A. Yes. Q. What did you understand that dispute to be over? A. Money. Q. When you heard the accused speak of Mr McGurk, what was his tone? A. Dislike. Q. Did you hear him call Mr McGurk names from time to time? A. I did. Q. Can you tell us please what names you heard? A. Pardon my language, but he called him a cunt. Q. When you heard the accused speaking about Mr McGurk in that way, would Lucky Gattellari also be talking about him in that way? A. Yes." 1. In cross-examination (commencing at T1779.38) Mr Shipley was taken to evidence which he had given in the accused's previous trial which included the following: "Q. And did you ever hear the accused in any way speak about the deceased? A. No. Q. At any time? A. I don't believe so." 1. When asked whether he had given that evidence at the previous trial, Mr Shipley responded (at T1779.45): "If that's what it says, that's what it says." 1. The cross-examination then continued by reference to paragraph [48] of a statement made by Mr Shipley in 2011 (which is now MFI 68). That paragraph is in (inter alia) the following terms: "Prior to the murder of Michael McGurk, I had only heard his name mentioned on a few occasions and by Ron and Lucky. From these times Ron had said that McGurk owed him money and whenever he spoke of him, it wasn't pleasant and he usually called him a 'cunt'. Lucky would also speak of him in this way." 1. The first two sentences in that paragraph are consistent with the evidence in chief of Mr Shipley, but inconsistent with evidence he gave in the previous trial. In the course of the previous trial the contents of paragraph [48] of his statement were drawn to Mr Shipley's attention and he was asked whether they refreshed his memory of how the accused had referred to the deceased. He replied: "No, not really, no." 1. He confirmed (at T1781.10 in this trial) that he had given such evidence before being asked the following (commencing at 1781.13): "Q. Having now read paragraph 48 in this trial, what do you say about your memory, your best memory of whether the accused spoke of the deceased in your presence at any time? A. It wasn't a conversation he had with me. It was a conversation he was having with Gattellari that I would have heard. Q. Well, what did you overhear? A. Gattellari was the fiery one." 1. I then intervened and the transcript records the following: "HIS HONOUR: No. That wasn't what you were asked. The question is what did you overhear in the conversation or conversations between Gattellari and the accused when there was a reference to the deceased? What did you hear? A. I honestly don't remember now." 1. In re-examination, the Crown commenced to ask Mr Shipley a number of questions which were obviously directed to eliciting the contents of paragraph [48] of MFI 68. Leave was not sought to put those questions and no objection was taken to the questions on that (or any other) basis. I raised the issue of leave with the Crown who accepted that leave was required. In raising the matter, I had in mind the provisions of s 32 of the Evidence Act 1995 (NSW) ("the Act") (which govern reviving memory in court), but the Crown properly pointed out that when provided with paragraph [48] of his statement in the last trial, the witness had said (as set out in [6] above) that his memory was not refreshed. The Crown indicated that reliance was placed upon s. 108 (which also requires leave). It was only at that point that objection was taken by senior counsel for the accused. 2. The issue which has arisen engages a number of provisions of the Act. The first is s 102, which sets out the credibility rule in the following terms: 102 The credibility rule Credibility evidence about a witness is not admissible. 1. The word "credibility" is defined in the Dictionary to the Act in the following terms: "credibility" of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence. 1. Section 108 is in the following terms: 108 Exception: re-establishing credibility (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement. 1. Section 192 sets out a number of mandatory factors that I must take into account in determining whether leave should be granted: 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 1. In opposing the application for leave, senior counsel for the accused submitted that Mr Shipley's credit had not been "attacked", and that, in particular, there would be no suggestion made that any evidence that he had given had been fabricated or reconstructed. It was senior counsel's submission that s 108(3)(a) therefore had no application to the present circumstances. He further submitted that all relevant accounts given by Mr Shipley in relation to this issue had been put before the jury. I interpolate that such a submission cannot be accepted. The contents of paragraph [48] are clearly not before the jury. That is the point of the Crown's questions. 2. The Crown submitted that the requirements of s 108(3)(a) had clearly been made out, the relevant prior inconsistent statement being what Mr Shipley had said at the last trial (as put to him at T1777.38 to T1777.42 of the present trial). 3. The first question which arises is whether or not the questions fall within s 108(3). Put simply, the credibility rule in s 103 will not apply if evidence of a prior inconsistent statement has been admitted. Clearly, the statement made by the witness at the last trial, is inconsistent with his evidence in chief. It is also inconsistent with the contents of paragraph [48] of MFI 68. It seems to me that in those circumstances the provisions of s 108(3)(a) are clearly enlivened: see Leung v the Queen [2003] NSWCCA 51 at [83] per O'Keefe J. 4. Accepting that to be the case, I turn to the provisions of s 192. Whilst the considerations set out in s 192(2) are not exhaustive, they are mandatory. 5. In terms of s 192(2)(a), the questions to be asked of Mr Shipley are confined to the issue that I have identified and will not be likely to add unduly to the length of the trial. 6. As to s 192(2)(b) I am not satisfied (at it was not specifically put) that to allow the Crown leave to ask these questions would be unfair to the accused. Indeed, one of the submissions made by senior counsel for the accused was that it would be open to the Crown to seek to elicit this evidence by relying on s 32, the suggestion being that no objection would be taken to that course. 7. As to s 192(2)(c), the evidence of is of some considerable importance. It is a significant part of the Crown case that the relationship between the accused and the deceased, although once seemingly close, had deteriorated to the point of toxicity, and that it was this deterioration which (at least in part) provided a motive to the accused to kill the deceased. 8. In terms of s 192(2)(d), the accused is on trial for the most serious offence known to the criminal law. 9. The matters in s 192(2)(e) have little or no application. 10. The mandatory factors in s 192 overwhelmingly favour the Crown's position. Accordingly, leave is granted to the Crown to elicit the evidence in question. ********** 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