R v Ronald Edward Medich (No. 42) [2018] NSWSC 379

Supreme Court New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 42) [2018] NSWSC 379 Hearing dates: 26 March 2018 Date of orders: 26 March 2018 Decision date: 26 March 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [10] Catchwords: CRIMINAL LAW – Evidence – Privilege against self-incrimination – Where witness objected to answering questions in the course of evidence – Where witness serving a sentence of imprisonment – Where witness attended by order of the Court but not under subpoena – Whether witness answering questions under compulsion Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW) Evidence Act 1995 (NSW) Cases Cited: Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4 Ferrall v Blyton [2000] FamCA 1442; (2000) 27 Fam LR 178; Song v Ying (2010) 79 NSWLR 442; [2010] NSWCA 237 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. Senior counsel for the accused has called Glen Patrick McNamara ("McNamara") to give evidence in the accused's case. McNamara is currently serving a term of imprisonment following his conviction by a jury for murder and the supply of a prohibited drug. I anticipate that McNamara will be asked questions touching upon issues which have given rise to the Crown's principal witness, Fortunato Gattellari ("Gattellari") being charged with conspiring to defraud the accused of a substantial sum of money. There have already been extensive references to McNamara's alleged involvement in that offending. In particular, there have been a number of references to his attendance at Cooma gaol on an occasion in 2014 where he is said to have met with some of the alleged co-conspirators. McNamara himself has not been charged with any offence. 2. At the request of those acting for the accused, I previously made an order pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) ("the CAS Act") which is in the following terms: 77 Attendance of inmates before courts and court officers (1) If an appropriate authority is satisfied that: (a) it is necessary that an inmate should attend before it for the purposes of any legal proceeding, inquest or inquiry, and (b) the absence of the inmate may prejudice the rights of a party, the authority may make an order directing the Commissioner to cause the inmate to be produced at the court or other place at which the proceeding, inquest or inquiry is being, or is to be, held. (2) Such an order is sufficient authority for the governor of the correctional centre in which the inmate is held to cause the inmate to be produced in accordance with the order. (3) An inmate produced in accordance with such an order is taken to be in lawful custody while in the actual custody of the governor, a correctional officer, a sheriff's officer or a police officer. (4) It is the duty of the person having actual custody of the inmate to return the inmate to the correctional centre from which the inmate was produced as soon as the appropriate authority permits. (5) In this section: "appropriate authority" means: (a) a court, or (b) a coroner, or (c) the Independent Commission Against Corruption, or (d) a Royal Commission, or (e) the Civil and Administrative Tribunal, or (f) the senior administrative officer (such as the clerk or registrar) of a court, or (g) a person prescribed by the regulations for the purposes of this definition. "correctional officer" includes: (a) a person employed on a temporary basis within Corrective Services NSW to perform some or all of the duties of a correctional officer, and (b) a person holding an authority under section 240 to perform escort duties. "court" includes the following: (a) the Children's Court, (b) the Federal Court of Australia, (c) the Family Court of Australia, (d) the Federal Circuit Court of Australia, (e) the Dust Diseases Tribunal, (f) any other court or body prescribed by the regulations for the purposes of this definition. 1. McNamara has attended to give evidence pursuant to that order. 2. When asked in evidence in chief whether he knew Gattellari, McNamara objected to answering that question, thus engaging the provisions of s 128 of the Evidence Act 1995 (NSW) ("the Act"). The Crown properly reminded me that McNamara had not attended Court pursuant to a subpoena. Without advancing a positive submission that this was the case, the Crown raised whether, in those circumstances, it was open to McNamara to avail himself of the provisions of s 128. There has been some conflict in the authorities as to whether or not a person is able to avail himself or herself of the provisions of s 128 of the Act when answering questions in chief, as opposed to when answering questions in cross-examination. 3. The decision of the Court of Appeal in Song v Ying (2010) 79 NSWLR 442; [2010] NSWCA 237 is authority for the proposition that if a witness has attended under compulsion, s 128 is available in respect of questions asked in evidence in chief. A contrary line of authority includes a decision of the Family Court of Australia in Ferrall v Blyton [2000] Fam CA 1442; (2000) 27 Fam LR 178 4. In Ying, Hodgson JA (with whom Giles and Basten JJA agreed) said the following (commencing at [19]): "19 Under s 12 of the Evidence Act, except as otherwise provided in the Act, a person who is competent to give evidence is also compellable to give it. That compulsion can be exercised by use of subpoenas to get witnesses to court and into the witness box; and refusal to answer questions which a witness is compellable to answer (whether in chief or in cross-examination) can result in imprisonment. 20 Plainly, in my opinion, if a witness gives evidence in chief because actually compelled to do so (by subpoena and threat of imprisonment), or because of the availability of such compulsion if he or she does not do so, there is no reason why that witness may not object to giving evidence in chief on the ground that that evidence may tend to incriminate. The question in my opinion is not whether the evidence is given in chief or in cross-examination, but rather whether an objection under s 128 is limited to an objection to giving evidence which the witness would otherwise be compellable to give." 1. I interpolate that in the present case there is no issue that McNamara is both competent and compellable. 2. In Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4, Bromwich J (with whom Kenny and Tracey JJ agreed) concluded that Ying was correctly decided. His Honour engaged in a comprehensive and meticulous review of the relevant authorities and concluded (at [58]) that Hodgson JA's reasoning in Ying reinforced an understanding that s 128 is directed to preserving the common law right of a witness to refuse compulsion to give evidence on the ground that it might be self-incriminatory, and that it provides compensation and protection to a witness. 3. Hodgson JA's view was that where a witness gives evidence under compulsion, s 128 can be invoked by that witness in respect of questions asked in chief. For present purposes, McNamara has attended court, compelled to do so by an order under s 77 of the CAS Act. He is both a competent and a compellable witness. As senior counsel for the accused pointed out, whilst it would be theoretically possible for a subpoena to be served on McNamara in custody, he could not respond to the command contained in the subpoena absent an order being made pursuant to s 77 of the CAS Act. 4. For those reasons, in my view, it is open to McNamara to avail himself of the provisions of s 128 of the Act.