Medich v R - [2021] NSWCCA 36 - NSWCCA 2020 case summary — Zoe

NSWNSWCCA

Medich v R

[2021] NSWCCA 36

Court of Criminal Appeal (NSW)|2020-05-19|Before: Bathurst CJ, Hoeben CJ, Hamill J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2020-05-19

Before

Bathurst CJ, Hoeben CJ, Hamill J

Catchwords

[1988] HCA 39 AK v Western Australia (2008) 232 CLR 438
[2008] HCA 8 Aravena v R (2015) 91 NSWLR 258
[2012] HCA 14 Baini v The Queen (2012) 246 CLR 469
[2012] HCA 59 Bin Sulaeman v R [2013] NSWCCA 283 BRS v The Queen (1997) 191 CLR 275

Source

Original judgment source is linked above.

Catchwords

[1988] HCA 39 AK v Western Australia (2008) 232 CLR 438[2008] HCA 8 Aravena v R (2015) 91 NSWLR 258[2012] HCA 14 Baini v The Queen (2012) 246 CLR 469[2012] HCA 59 Bin Sulaeman v R [2013] NSWCCA 283 BRS v The Queen (1997) 191 CLR 275[1977] HCA 43 Elomar v RHasan v RCheikho v RCheikho v RJamal v R (2014) 316 ALR 206[2014] NSWCCA 303 Evans v Regina [2006] NSWCCA 277(2006) 164 A Crim R 489 Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29 Folbigg v R [2007] NSWCCA 371 GBF v The Queen [2020] HCA 40Paddison v The Queen (2011) 245 CLR 282[2011] HCA 51 Higgins (a pseudonym) v The Queen [2016] VSCA 47 Higgins v R [2020] NSWCCA 149 HML v The QueenSB v The QueenOAE v The Queen (2008) 235 CLR 334[2008] HCA 16 Hogg v R [2019] NSWCCA 323 House v The King (1936) 55 CLR 499

Judgment (107 paragraphs)

[1]

The applicant

In written submissions filed on behalf of the applicant it was contended that r 4 of the Criminal Appeal Rules (1952 SI 2) (NSW) (Criminal Appeal Rules) did not apply, although it was accepted that the re-examination of which complaint was made took place without objection. I have set out at [44] above the particular portion of which complaint was made during the course of the application to discharge the jury.
It was contended that the Crown sought to prove what the Safetlis understood to be the nature of the unresolved problem that the deceased posed, and to whom, by introducing erroneous and inadmissible assumptions of Kaminic, a course which had not been disclosed prior to the re-examination. It was submitted that Kaminic's recollection of the state of legal affairs between the applicant and the deceased was not capable of, or admissible to prove, what motivated the Safetlis in conveying what they did.
The submissions noted that at the time of the application to discharge the jury, the Crown had disclosed that it was not part of its case that the Safetli conversation was in furtherance of any joint criminal enterprise with the applicant.
It was submitted that the Crown's contention that the emphasis placed by the cross-examiner on the word "you" opened the door to the re-examination was wrong. It was submitted that the cross-examination did not explore Kaminic's state of mind; rather, it explored his recollection of what was said and "how it was said". In making reference to "how it was said", the submissions are presumably referring to the emphasis placed by the cross-examiner on the word "you".
The written submissions contended that Kaminic's assumption as to the state of mind of the Safetlis was "without foundation, consequently inadmissible and ultimately prejudicial" to the applicant's case. The submission noted that counsel contended he did not object at the time because he was caught by surprise by the question. It was also submitted that Kaminic's knowledge of the court proceedings on foot was in fact wrong and contrary to the agreed facts.
The submissions referred to the reasons of the trial judge in dismissing the application. It was submitted that his Honour was in error in characterising the essence of the application as premised upon the fact that the evidence was new and elicited in re-examination. It was submitted that defence counsel was making the point that the undisclosed assumption was not admissible, prejudicial and went to the heart of the defence case. It was submitted in those circumstances that the trial judge failed to take into account the articulated prejudice.
It was submitted that the further cross-examination did not cure the articulated prejudice. It was submitted that the further cross-examination was a forensic position which counsel ought not to have been left to adopt. Referring to the comment by Kaminic in that further cross-examination, namely, "[h]e read the content", it was pointed out that the newspaper article which was not in evidence made no mention of acrimony between the applicant and the deceased. It was noted that the Crown had the article in its possession. However, it was also in the possession of senior counsel for the applicant and he made no attempt to cross-examine on it or tender it.
It was submitted that a critical aspect of the defence was the doubt engendered by the unchallenged evidence of Kaminic that the Safetlis were to kill the deceased at a time antecedent to any joint enterprise between Gattellari and the applicant. It was noted that the Crown conceded "there was no common purpose" at the time the Safetlis commenced their surveillance and raised the topic of murdering the deceased. In that context, it was submitted that the unfair prejudice occasioned by the evidence was that it was capable of cementing in the minds of the jury, contrary to the proper concessions of the Crown, that the objective of the Safetli plot at the time was for the applicant's advantage.
It was submitted that the risk of miscarriage was "put beyond doubt" in the Crown's address when the Crown sought to persuade the jury that the evidence adduced in re-examination and the February surveillance was in furtherance of the joint enterprise. It was submitted that this was inconsistent with the Crown concession at the trial.
It was contended that, contrary to what the trial judge envisaged at the time he considered the discharge application, namely, that Kaminic's opinion was not probative of much (see [47] above), the Crown amended its case and pressed "the Kaminic assumption" in such a way as to unfairly detract from a doubt raised in the defence case. In that context, it was submitted that the Crown recognised Kaminic's evidence was in part unfavourable to its case, and that it was accepted by the Crown to be reliable inasmuch as the early February events were not relied upon to prove the applicant's guilt. It was submitted that contrary to this articulated position, the Crown relied on the re-examination of Kaminic to obscure the problem his evidence presented and to support an inference that the early observations of Kaminic were in furtherance of the single enterprise. The written submissions referred in that context to that part of the Crown's address to which I have referred to at [52] above, particularly the comments concerning the further cross-examination of Kaminic.
At the hearing, senior counsel for the applicant submitted that the case against his client had the following central features. First, that there was a joint criminal enterprise initiated by the applicant. He emphasised that it was not a joint criminal enterprise initiated by one or more of the Safetlis, or that there was any suggestion that there was a joint criminal enterprise initiated by the Safetlis to which the applicant subsequently became a party.
Senior counsel for the applicant referred to what he described as material contradicting the Crown case, including the evidence of Kaminic. He submitted that the chief contradictory element of Kaminic's evidence concerned the timing and content of the approach by the Safetlis with respect to the killing of the deceased. He submitted that the key quality of the Safetli conversation was that it preceded the institution of the joint criminal enterprise.
In that context, senior counsel for the applicant submitted that the re-examination was an attempt to implicate the applicant before the inception of the joint criminal enterprise. He described the re-examination and "the excess by the Crown" extending beyond the re-examination as an "unsubstantiated and artificial adjustment of chronology and temporal sequence". He referred to the applicant's written submissions, pointing out that at the time of the re-examination the Crown's position could not have been plainer, knowing that the Safetli conversation preceded the applicant's involvement on the Crown case. He submitted that by the time of the closing address, without any challenge to the evidence of Kaminic, evidence was being turned to account of Safetlis' conduct in furtherance of the enterprise in which the applicant was a participant.
Senior counsel for the applicant submitted that the re-examination was re-examination which could only elicit assumptions by someone who, upon testing, does not give any evidence about any conversation at the time which would permit an inference to be drawn as to whom the pronoun "you" referred. He described the assumption as "quite unnatural in terms of colloquial language" involving the applicant as the person addressed by the word "you". He submitted that there was no evidence to suggest that Gattellari was a "surrogate" for the applicant, and that there was nothing evidentiary about Safetli's assumption. Senior counsel for the applicant also submitted that there was nothing in the agreed facts to show that the applicant and the deceased had any unresolved problems at that time. He also submitted that at the time of the application for discharge, the Crown had stated to the trial judge that it was no part of its case that the Safetli conversation was in furtherance of any joint enterprise with the applicant. In fact, that concession was not made during the application for discharge but, as I have pointed out, in the context of a relevance objection made by the Crown (see [41] above).

[2]

The Crown

In its written submissions, the Crown submitted that there were no objections to the relevant questions but rather an application to discharge the jury. It was submitted in those circumstances that r 4 of the Criminal Appeal Rules applied to ground 4(b).
In dealing with ground 4(a), the Crown submitted that where a judge has refused to discharge the jury and the accused is being convicted, the appeal is not against the failure to discharge the jury but rather against a conviction. The Crown referred in that context to Maric v R (1978) 52 ALJR 631 ("Maric"), Trieu v R [2012] NSWCCA 169 and Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 ("Hamide").
The Crown submitted that in the present case a chronological consideration of the evidence given by Kaminic demonstrated that the answers in re-examination did not have the significance contended for, nor were they tendered to be used in the way asserted by the applicant.
The Crown referred to the evidence of Kaminic to which I have set out at [30] above. The Crown pointed out that the evidence established that the proceedings in question were instituted by the deceased against Sally Tilley as mortgagee seeking possession of premises at Wolseley Road, Point Piper. It is noted in the statement of agreed facts that the mortgage had been assigned to the deceased by the applicant. The Crown also pointed out that the statement of agreed facts established that the applicant had requested reassignment of the mortgage but that had been refused.
The Crown accepted that the applicant and the deceased were not opposing parties in the litigation, but submitted that that was not determinative as the applicant was sufficiently interested to attend court on that day and to have been concerned that the deceased would not show up. It was submitted that this formed the context of Kaminic's understanding of the conversation which was the subject of the re-examination.
The Crown also referred to the evidence of Kaminic and the subsequent meeting at Gattellari's home. I have set out that evidence at [32] above. The Crown referred to Kaminic's evidence that Gattellari asked the Safetlis to follow the deceased, saying that he would notify Medich to let him know about his movements. The Crown also referred to Kaminic's evidence of subsequent meetings between him, Gattellari and the Safetlis to which I have referred at [33] above.

[3]

Ground 4(a)

Contrary to the approach taken by Hamill J, I consider it appropriate to deal with ground 4(a) prior to dealing with ground 4(b). This is not only because the primary focus of the submissions of the parties was directed to that ground, but also because the focus of senior counsel for the applicant at the trial was on the question of the discharge of the jury. I have set out senior counsel for the applicant's submissions at [45]-[47] above where, apart from the assertion that the evidence should have been led in chief rather than in re-examination, he did not submit that it was otherwise inadmissible. Rather, what he focused on was the unfairness which occurred by reason of its introduction in re-examination without notice in circumstances where it was submitted that it effectively involved a change in the Crown case, undermining an important plank in the applicant's defence, namely, that the joint criminal enterprise was one between Gattellari and the Safetlis to which the applicant was not a party.
In Maric, it was pointed out by Gibbs ACJ at 634 that an appeal in these circumstances is not against a failure to discharge the jury but against the conviction. However, his Honour, with whom Mason and Jacobs JJ agreed, immediately went on to say that in these circumstances he could not see any justification for dealing with such cases on different principles from that which applies in criminal appeals generally (Maric at 634-635).
In Crofts v R (1996) 186 CLR 427; [1996] HCA 22 ("Crofts"), Dawson J, albeit in dissent, made the following remarks at 432 in a passage which has been frequently cited: "Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that 'a high degree of need for such discharge' must appear before a discharge will be ordered. When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury."

[4]

Ground 4(b)

In my opinion, r 4 of the Criminal Appeal Rules applies to this ground. No objection was taken at the time the evidence was led and it was not put to the trial judge that it was inadmissible, as distinct from evidence which should have been led in chief and was prejudicial because it amounted to a change in the Crown case.
However, having regard to the approach I have taken in relation to ground 4(a), it is appropriate that leave be granted.
In my opinion, the evidence was inadmissible. At most it amounted to Kaminic's understanding of the identity of the person to whom Safetli was referring when he used the pronoun "you". His understanding was irrelevant, it not being admissible to prove who in fact Safetli was referring to when he used the pronoun.
The Crown contended that Kaminic's evidence was admissible as opinion evidence under s 78 of the Evidence Act. I do not agree. Kaminic's opinion was not based on what he had heard or seen during the course of the conversation. In Lithgow City Council at [43], the plurality stated that the word "perceived" in the s 78(a) of the Evidence Act meant to observe by one of the five senses of sight, hearing, smell, taste or touch. In this case, it could not be said that Kaminic's evidence was based on an observation in that sense, rather than a deduction from other events. Section 78 of the Evidence Act has no operation in these circumstances.
It follows that, as concluded by Hamill J, there was a miscarriage of justice. However, for the reasons that I have given in relation to ground 4(a), particularly at [95]-[100], I am of the opinion that no substantial miscarriage of justice has occurred and the proviso in s 6(1) of the Criminal Appeal Act is applicable. As I have concluded that none of the other grounds of appeal have been made out, the operation of the proviso can be considered solely by reference to this ground.
In the circumstances, I would grant leave under r 4 of the Criminal Appeal Rules to raise this ground. However, the ground of appeal has not been made out.

[5]

Ground 5 - The trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor's cross-examination of Peter Medich

The relevant evidence has been set out in the judgments of Hoeben CJ at CL and Hamill J and it is unnecessary to repeat it. I would emphasise the following matters.
First, I am not prepared to accept the submission made on behalf of the applicant in written submissions that there was conscious impropriety by the Crown. It must be said that this proposition was put in far more muted form by senior counsel for the applicant at the hearing of the appeal.
Second, the case is quite different to the authorities relied upon by senior counsel for the applicant in his written submissions. R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345 involved the Crown in closing address making an allegation of conspiracy between witnesses which had no foundation in the evidence and which was not put to those witnesses in any event. Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 involved the prosecutor putting a series of questions to the jury which in effect reversed the onus of proof in circumstances where objection had been taken to those questions in written form. These cases are far removed from the present case.
Third, the cross-examination complained of took place in the context of what might be described as a hotly contested context as to the respective credibility of Mr Loren Gattellari and Mr Peter Medich. In his cross-examination of Mr Loren Gattellari, Senior Counsel for the applicant put to him that Mr Peter Medich said, "[i]t looks like you're trying to blackmail my old man", which was denied. In his version of the conversation which took place between him and Mr Loren Gattellari, Mr Peter Medich did not suggest this was said.
I have referred to this cross-examination not to criticise senior counsel for the applicant at trial or to suggest it justified asking questions which were unfair or improper. Rather, I have referred to it to emphasise that there was a real contest as to the purpose of the conversation in which the credit of Mr Loren Gattellari and Mr Peter Medich was a central issue.
Fourth, to the extent that the Crown was criticised for putting to Mr Peter Medich that he did not go to the police, that was the effect of his evidence. It is true that thereafter he gave evidence that he referred the matter to the applicant's solicitor who told him he contacted the police. There was no evidence to show whether he actually did so.

[6]

Ground 6(a) - The trial judge erred in admitting evidence that the applicant engaged Gattellari to arrange debt collection and the surveillance of the applicant's wife

[7]

Ground 6(b) - The trial judge erred in his directions to the jury in respect of the use that was to be made of the evidence of debt collection and surveillance of the applicant's wife

For the reasons given by Hoeben CJ at CL, ground 6(a) has not been made out, whilst I would not grant leave under r 4 of the Criminal Appeal Rules to raise ground 6(b).

[8]

Ground 7(a) - A miscarriage of justice resulted from the failure of the trial judge properly to direct the jury regarding how a finding of guilt in respect of Count 2 might be used in respect of Count 1

[9]

Ground 7(b) - A miscarriage of justice resulted from the failure of the trial judge to direct that certain evidence relevant to Count 2 was not admissible for use in proving Count 1

[10]

Ground 7(c) - A miscarriage of justice resulted from the failure of the trial judge to warn the jury against impermissible tendency reasoning

The relevant evidence, the subject of this ground (expressed to be by way of example only), is set out in the judgment of Hoeben CJ at CL at [199]. It is not necessary to set it out in this judgment.
Hoeben CJ at CL and Hamill J have each concluded that the evidence complained of was admissible on both counts. I agree with that conclusion, essentially for the reasons given by Hamill J at [92] of his Honour's judgment.
There remains the question upon which Hoeben CJ at CL and Hamill J disagreed, that the evidence was such that it necessitated the trial judge giving an anti-tendency direction. In considering this issue it is important to have regard to the summing-up as a whole.
Early on in his summing-up, the trial judge made reference to the recorded telephone conversations between the accused and other parties, including ones with Mr Howard of which the specific complaint is made. The summing-up on this issue was in the following terms: "One example - and it is only an example - is that, in the course of the Crown Prosecutor's address, she took you to some of the recorded conversations between the accused and other persons - I think, in particular, between the accused and Mr Howard - and asked you to draw certain inferences from the accused's tone of voice on those recordings as to how he felt, amongst other things, about Mrs McGurk at the time that those conversations were recorded. What the Crown was essentially asking you to do was to draw an inference from those recordings as to what the accused's particular frame of mind was, or what the Crown says it was at the time. Mr Terracini also made reference in the course of his address to inferences that he sought that you would draw on behalf of the accused."
Thus, early in his summing-up, the trial judge indicated the use to which the evidence which formed part of the complaint could be put, namely, the accused's state of mind.
Early in his summing-up, the trial judge also identified the need to deal with each count separately. After directing the jury to that effect, he made the following remark: "As I have explained to you, the entirety of the evidence is available in relation to both counts, but you must consider each count separately. It would be quite wrong if you approached your deliberations in what might be said to be a global way and dealt with things together. You must ensure that each count is considered separately."

[11]

Ground 1 - The jury verdict in respect of Count 1 is unreasonable

[12]

Ground 2 - The jury verdict in respect of Count 2 is unreasonable

Having conducted my own review of the record, I am of the opinion that leave to raise these grounds should be granted. However, for the reasons given by Hoeben CJ at CL, I am of the opinion that neither verdict was unreasonable within the meaning of that expression in the authorities.

[13]

Orders

In the result I would make the following orders: 1. Grant leave to the applicant to rely on Grounds 1 and 2 and Ground 4(b) of the Grounds of Appeal. 2. Refuse leave under r 4 of the Criminal Appeal Rules to rely on Grounds 5, 6(b) and 7. 3. Dismiss the appeal.
HOEBEN CJ at CL:

[14]

Introduction The applicant seeks to appeal his conviction after trial on an indictment before Justice Bellew and a jury in the Supreme Court at Sydney. The two counts on the indictment of which the applicant was convicted were: 1. on 3 September 2009, at Cremorne in the state of New South Wales, did murder Michael McGurk (the deceased) (contrary to s 18(1)(a) Crimes Act 1900 (NSW)); and 2. on 8 August 2010, at Cremorne in the state of New South Wales, did intimidate Kimberley McGurk with the intention of causing the said Kimberley McGurk to fear physical or mental harm (contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

Count 1 carries a maximum penalty of imprisonment for life, with a standard non-parole period of 20 years. Count 2 carries a maximum penalty of imprisonment for 5 years and/or a fine of $5,500. There is no standard non-parole period prescribed for this offence.
At an earlier trial in 2017 before Bellew J, following the presentation of an identical indictment, the jury were unable to agree in respect of both counts (the first trial).
The second trial commenced before the jury on 30 January 2018 and the jury retired to consider its verdict on 11 April 2018. On 23 April 2018, verdicts of guilty in respect of both counts were returned.
The applicant was sentenced on 21 June 2018. For the intimidation of the deceased's wife, the applicant was sentenced to a fixed term of imprisonment for 4 years and 6 months, commencing 27 February 2018 and expiring on 26 August 2022.
For the murder of the deceased, the applicant was sentenced to imprisonment with a non-parole period of 27 years, commencing 27 February 2021 and expiring on 26 February 2048, with an additional term of 9 years imprisonment, expiring on 26 February 2057.
There was no issue that Fortunato Gattellari ("Gattellari") had arranged both the murder and the intimidation and that he had made the payments, either directly or through Senad Kaminic ("Kaminic") to Haissam Safetli for carrying out the relevant offences. The only real issue at trial was whether the Crown had proved beyond reasonable doubt that Gattellari had done so at the instigation of the applicant.
The applicant has filed a notice containing seven grounds of appeal. The applicant has also filed written submissions ("AWS"). The applicant requires leave to appeal in relation to each of the grounds of appeal as none of them involve a question of law alone and they each involve either questions of fact, or mixed questions of law and fact (s 5(1)(b) Criminal Appeal Act 1912 (NSW)).

[15]

Ground 1 - The jury verdict in respect of Count 1 is unreasonable

[16]

Ground 2 - The jury verdict in respect of Count 2 is unreasonable

[17]

Ground 3 - A miscarriage of justice resulted from the Crown Prosecutor's address to the jury asserting that the evidence was capable of establishing that cash currency was deposited into the accounts of the electrical companies thereby corroborating Gattellari's account

[18]

Ground 4(a) - The trial judge erred in failing to discharge the jury after the admission of inadmissible assumptions on the part of Senad Kaminic elicited by the Crown Prosecutor in re-examination giving rise to a miscarriage of the kind requiring this Court to set aside the verdicts

[19]

Ground 4(b) - A miscarriage of justice has been occasioned by the admission of evidence of assumptions of Senad Kaminic

[20]

Ground 5 - The trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor's cross-examination of Peter Medich

[21]

Ground 6(a) - The trial judge erred in admitting evidence that the applicant engaged Gattellari to arrange debt collection and the surveillance of the applicant's wife

[22]

Ground 6(b) - The trial judge erred in his directions to the jury in respect of the use that was to be made of the evidence of debt collection and surveillance of the applicant's wife

[23]

[24]

Ground 7(b) - A miscarriage of justice resulted from the failure of the trial judge to direct that certain evidence relevant to Count 2 was not admissible for use in proving Count 1

[25]

Ground 7(c) - A miscarriage of justice resulted from the failure of the trial judge to warn the jury against impermissible tendency reasoning

[26]

Summary of Crown and Defence cases

It was the Crown case that at about 6.25pm on the evening of 3 September 2009, the deceased was shot dead outside his Cremorne home by Haissam Safetli who had been driven to the crime scene by Christopher Estephan ("Estephan") in furtherance of a single joint criminal enterprise with Gattellari.
It was the Crown case that the applicant, Haissam Safetli, Bassam Safetli, Gattellari and Kaminic were participants in the single joint criminal enterprise.
Almost a year later, on the evening of 8 August 2010, the deceased's wife participated in a police operation in which a registered informant attended at her home (referred to as "Witness A") and relayed a message in terms of "pay your husband's debt". On the Crown case the debt was the applicant's. It was the Crown case that instructions as to the terms of the message were passed on to Witness A by Haissam Safetli. The participants in this offence were by this time the subject of electronic and physical surveillance and police were in the premises at the time of the delivery of the message.
Haissam Safetli began assisting police in September 2010 and was arrested and charged with murder and intimidation on 13 October 2010.
Gattellari and Kaminic were each arrested and charged in relation to their involvement in the murder on 13 October 2010. The circumstances attached to their pleas of guilty and discounts for their assistance in the prosecution of the applicant were the subject of evidence and warnings from the trial judge.
The Crown opened on the basis that it was "in or around February or March 2009" that the applicant first approached Gattellari in respect of organising the murder. This was refined in the closing address to "some time in early March 2009" for the first solicitation to murder. There was a later solicitation in early June 2009.
Gattellari testified that "days or weeks" after the applicant solicited the murder (i.e. before the murder) the applicant said that he also wanted the deceased's wife to be "paid a visit" to convince her to pay debts owed to him.
The Crown sought to prove that both counts on the indictment were committed in the execution of a single joint criminal enterprise. The existence of this single joint criminal enterprise (and not two) was a critical fact that the Crown sought to prove. This was made clear to the jury by the trial judge in his summation of the Crown case.

[27]

A preliminary issue

The applicant referred to and sought to rely on an affidavit of Robyn Richardson, sworn 4 December 2019, which had annexed to it certain financial reports relating to the electrical companies which were under the control of Gattellari. The reports and their attachments were quite voluminous. It was common ground that these documents were in the possession of both the Crown and the defence at the time of the second trial. With one exception neither party sought to rely upon them in the trial ([191] hereof).
In the appeal the applicant disclaimed any reliance upon the documents as "fresh" evidence and submitted that the purpose of placing those documents before the Court was to establish that a submission made in the course of the trial concerning the payment and source of monies in the electrical companies was not supported by the evidence at trial and should not have been made.
The purpose for which the reports were to be relied on by the applicant was variously described as follows in oral submissions in the appeal: "WALKER: Now another aspect of the relevance and admissibility of the affidavit, and we stress, this is not fresh or new evidence, I'm not asking you to take this into account, we are asking you to evaluate what the Crown had, being a letter to creditors by Mr Collis, your Honours may have seen that it's the first annexure to the affidavit, annexure A, on page 3 ..." (AT 33.23) "WALKER: Yes if it please the Court and I stress, we are here talking about the conduct of the Prosecutor in putting something which the evidence didn't support and which was contrary to material that the Prosecutor had that didn't go into evidence." (AT 33.33) "WALKER: I want to use this material to show that the Prosecutor had material, not deployed to the very contrary." (AT 33.45) "WALKER: Your Honour in our submission the admission of this material has nothing whatever to do with the reception of new or fresh evidence." (AT 34.6) "WALKER: As your Honours will appreciate the very essence of it is not asking to receive it as evidence of the facts in it but simply to show that outside the exhibits there was material that is relevant to this Court's assessment of the quality of that against the complaint of miscarriage that we made. With respect to what the Chief Justice has fairly raised with me concerning the lack of objection that ought not deter the Court whatever from entertaining this point for the reasons that we have written generally concerning r 4 and in particular here. The notion that the failure to raise objection to an inaccuracy in the Crown address is covered by r 4 is in any event wrong, we submit, it is a pity that there was not an objection but I say that with the unattractive position of hindsight." (AT 34.25) "WALKER: It's p 3 in the second paragraph in particular contains narrative which shows the disbursement of funds, none of which of course has got anything to do with the receipt of bank notes in such a way as to cast and to provide no support whatever for money being put into the companies in such a way as to be available for ready withdrawal." (AT 34.42) "BATHURST CJ: This was an independent expert's report, wasn't it? WALKER: That' right. Available to the Crown because of the first trial. Not deployed in the second trial but this is material they have and in the face of the expert it's impossible to say and maybe I am engaged in super irrigation here proving something already proved, there is simply no evidence to support the existence, let alone pattern of cash deposits or withdrawals of the kind necessary for Gattellari's version to be corroborated. Indeed necessary for Gattellari's version to be true. That is the extent of the way in which we sent to the affidavit." (AT 35.6) "BATHURST CJ: Could I just ask you a couple of things about this document that's annexure A because it is relevant that Terracini made no objection. If you go to p 8 for example where there is Unreasonable Director Related Transactions, after defining it more or less correctly, and he looks at a large number of transactions made in favour of Mr Lucky Gattellari totalling some $2,407,000 he then shows at annexure A which is just after p 12 various loan accounts which shows a loan account to Rivercorp (sic Rivdev) of 8.374 million which was the amount that Mr Collis was presumably referring to when he gave his evidence. WALKER: Yes. He lodged a proof. BATHURST CJ: Lodge a proof for it. What I am saying is I can understand looking at a few of these figures why Mr Terracini mightn't have been overly anxious to have this material before a jury." (AT 35.28) "BATHURST CJ: There is for example, p 035 in the annexures a note signed by Mr Gattellari, we would like to order cash in the sum of $40,000 in $100 bills. The next page, we'd like to order cash in the sum of $20,000 in $100 bills with a note, please confirm that Romaine will be able to pick this up that afternoon. The next page, cash in the sum of $50,000 in $100 bills if available. Two pages on, $20,000 in $100 bills and then one, cash in the sum of $10,000 in $100 bills. I'm not saying that can be used -- WALKER: None of which has been for tally, your Honour. BATHURST CJ: I appreciate that. What I am saying is, and I fully appreciate your submission about there being no evidence to support the Crown submission which it was concerned, that to ascertain that I was correct that this doesn't depend on this material but where you're going to miscarriage of justice on this material, this material was with Mr Terracini, I can see matters which maybe not wise with the wisdom of hindsight, you've just got to avoid going near this document altogether." (AT 36.13)

[28]

A consideration of this ground is complicated to some extent by what appear to be two conflicting decisions of this Court, i.e. Armstrong v R [2013] NSWCCA 113 (Armstrong) (Harrison J with whom Simpson and Bellew JJ agreed) and Lyndon v R [2014] NSWCCA 112 (Lyndon) (Basten JA with whom Button J and RS Hulme AJ agreed). The effect of Armstrong is that r 4 of the Criminal Appeal Rules (NSW) does not operate when there is a failure by counsel to object to perceived inaccuracies in the Crown's address or to its allegedly extravagant or intemperate tone. In Lyndon doubts were expressed by Basten JA as to whether that interpretation was correct.
The Crown in this matter took a conservative approach and dealt with the issue on the alternative basis suggested by Basten JA in Lyndon where his Honour said: "28 ... However, the underlying issue remains: counsel for the applicant took no objection at trial to any part of the prosecutor's address and did not seek either a discharge of the jury or directions from the judge to ameliorate the supposed prejudicial effect. Generally, an accused should not sit by and note errors occurring in the conduct of a trial for use in a subsequent appeal. On the contrary, if a potential flaw is foreseen, steps should be taken to avoid that occurring, or to ameliorate its effect once it has occurred. ... 29 Rule 4 was said not to operate in the present case because no direction from the trial judge would have been adequate to overcome the effect of the prosecutor's address. However, that is not an adequate answer, for two reasons. First, if a direction had been thought necessary and had been sought and given, the appeal would then be concerned with an assessment of whether the steps taken by the trial judge were adequate in all the circumstances. The fact that no direction was sought explains the omission by the trial judge, but does not take the case outside the operation of r 4. Secondly, it should not be assumed that the principle underlying r 4 does not operate because the rule does not in terms deal with a discharge of the jury. The principle identified above imposes on both parties, as well as the court, obligations with respect to the running of a trial before a jury. If the circumstances appear to call for the jury to be discharged, such an order should be sought and its appropriateness debated by those at the trial."

[29]

[30]

Ground 4(b) - A miscarriage of justice has been occasioned by the admission of evidence of assumptions of Senad Kaminic

In order to understand the submission in relation to what was labelled the "Safetli conversation" at trial, one cannot look at that incident in isolation. Rather, its context needs to be understood and the sequence of events leading up to and following upon it, are important.
The sequence of events can be briefly summarised. The first event which occurred was the "going to court" event. This was described by Kaminic as occurring in the beginning of February 2009. He went there with Gattellari and others. Kaminic gave evidence that it was his understanding that the applicant had a matter in court that day against the deceased and that he thought it was about money.
Kaminic's evidence was that when they went to court, the applicant appeared to be nervous and concerned about whether the deceased would show up. It was in those circumstances that Kaminic was asked by Gattellari to ring up one of the Safetli brothers about whether the deceased would attend court. Kaminic said that he made the phone call and asked one of the Safetli brothers to go over to the deceased's house to see where he was and to see whether he was going to be coming to court. Kaminic gave evidence that there was a report back that the deceased had been lost in traffic and as a result it was not clear whether he would be coming to court.
The evidence from Kaminic was that before court there was a group of persons in a coffee shop that included Gattellari and others and as a group they went to court on this particular day. Kaminic and Gattellari only stayed for a matter of minutes. Kaminic's evidence was that he did not see the deceased at court that day.
There was evidence before the jury in the form of agreed facts that there were proceedings in the Supreme Court that were listed on both 3 and 6 February in relation to what was described as the "Tilley proceedings" which related to a property at Point Piper. The key issue for the applicant in relation to that Point Piper property was that he had assigned to the deceased his mortgages which were secured by it.
The applicant had made a request prior to the court dates of 3 and 6 February for his mortgages to be re-assigned to him (Exhibit G at para 50). That request had been refused by the deceased. What that meant is that at the time of the court attendance on 3 or 6 February 2009, there was a dispute between the applicant and the deceased, related to the matter that was before the court that day.

[31]

Ground 5 - The trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor's cross-examination of Peter Medich

The impugned cross-examination was at T2829 as follows: "Q. I suggest that the reason why you didn't make a statement to the police after you'd had the discussion with Loren Gattellari on 15 October 2010 was because the conversation with Loren Gattellari was that his father was holding back on telling the truth about your father's involvement in the murder? A. No. Q. For you to make such a statement would have been to implicate your father? A. No."
The applicant was critical of those questions because they had the forensic purpose of putting to the witness that he did not report the extortion attempt to police because he (the applicant's son) knew that to do so would implicate his father in murder. The applicant submitted that the insinuation against Peter Medich was twofold. It suggested that the silence of the witness was probative of his belief that Gattellari was a potentially truthful witness and his belief that the applicant was guilty of murder.
The applicant submitted that the only possible relevance of Peter Medich's alleged failure to disclose the attempted extortion to the police was that an inference was available that Gattellari was telling the truth and Peter Medich suspected as much. The applicant submitted that there was no evidentiary basis for putting that allegation to Peter Medich and in that regard, the questions were improper and gave rise to a miscarriage of justice.
The applicant submitted that the cross-examination had the improper forensic purpose of suggesting that Peter Medich was engaged in the cover up and concealment of evidence relevant to murder. The applicant submitted that there was no evidentiary basis for this to be put by the Crown Prosecutor to Peter Medich.
The Crown noted that there was no objection to those questions at trial, nor was there any discussion of the issue at trial. The Crown submitted that this militated against the interpretation which was being contended for in the appeal being the first time that this matter had been raised. The Crown submitted that it had been consistently observed by courts that an appeal is not an opportunity for counsel to go through the record of trial in minute detail looking for possible arguments without regard to the manner in which the trial was conducted (Roach v R [2019] NSWCCA 160 at [195]). The Crown submitted that this ground of appeal had the appearance of being the product of such a process.

[32]

Relevant evidence of Loren Gattellari, Matthew Crocker and Peter Medich

Gattellari's son gave evidence about a visit to his father in custody (T188.14): "Q. And did your father ask you whether you had had any contact with Peter Medich? A. He asked me if I still had contact with Peter Medich and I told him that yes, I did. Q. When you told him you still had contact with him, did he ask you to do something? A. He asked my to go and see Peter and relay a message to his father from my dad, yes. Q. To relay a message to his father, you mean to Ron Medich? A. To Ron Medich, yes, from my dad through Peter. Q. And did your father tell what you the message was he wanted relayed? A. The message was that the police were wanting him to implicate Ron Medich in the murder and he was holding back on it and he needed Ron Medich's financial help for his legal defence and that if Ron did not want to help my dad financially with his legal defence then he was not going to do 20 years in gaol and he'd just comply with the police. That was the message."
Gattellari's son then contacted Peter Medich by telephone and arranged to meet with him at a bar in Leichhardt. His evidence about the meeting was as follows (T1881.32): "Q. When you and Mr Crockett arrived at the bar, did you see Peter Medich? A. We arrived first. I called Pete to say we were there. He said, "head upstairs." There's a terrace upstairs. And then we and Matt bought a beer and sat outside and waited. Q. Was there any small talk, or did you raise the message that your father had asked you to pass on? A. When Peter arrived? Q. Yes. A. Yes, I believe we just said hello to each other and stuff and, yes, sat down, but, yes, after that I think I pretty much just got to the point of the meeting. Q. Do you remember what it was that you said to Peter Medich? A. Pretty much how I exactly said it before. I told him that the police are looking for my dad to tell them about his dad's involvement and my dad hasn't been doing that so far. I told him the cost of the legal fees and that my dad's, like, sort of expecting his dad to jump in and help with that and that if he doesn't, then my dad is going to start helping the police with what they want. Q. And did you pass on precisely the amount of legal fees that your father needed? A. Yes, I told him the $1 million amount. Q. What was Peter Medich's response to you telling him that? A. I don't think he was expecting it and -- HIS HONOUR: Q. You weren't asked that. What was his response? A. Okay. He just sort of said, well, his response was that he had no contact with his father. He was in Adelaide or something like that, so it was going to be impossible for him to relay the message. And I said, "well, you're going to have to because, like, my dad is not going to sit in gaol forever waiting for your dad." So I think I said something along the lines, "Well, go buy a plane ticket and go talk to him." CROWN PROSECUTOR HARRIS Q. All right. Was Matthew Crockett participating in the conversation; do you remember? A. No, this is just going back and forth between me and Peter."

[33]

Ground 6(a) - The trial judge erred in admitting evidence that the applicant engaged Gattellari to arrange debt collection and the surveillance of the applicant's wife

[34]

Ground 6(b) - The trial judge erred in his directions to the jury in respect of the use that was to be made of the evidence of debt collection and surveillance of the applicant's wife

Before the trial, objection was taken by the applicant to the admission of the evidence complained of in relation to Ground 6(a). However, senior counsel appearing for the applicant conceded during the course of oral argument that the evidence was relevant. The argument for its exclusion then proceeded solely by reference to s 137 of the Evidence Act.
Contrary to the applicant's submission at AWS [351] it is clear from the transcript that such a concession was made by senior counsel after his Honour indicated at the hearing on 18 October 2016 that he had read the written submissions.
At that time, the following exchange occurred: "[HIS HONOUR] I might hear from you first, Mr Terracini, given it's your application. TERRACINI: In relation to the application, we have covered every point that we have or think relevant in the written submissions. HIS HONOUR: Can I ask you this. Is it your fundamental position that this evidence ought be excluded under s 137? TERRACINI: Yes. HIS HONOUR: So that carries with it, does it not, an acceptance of the fact that the evidence is prima facie relevant, and subject to specific objections to that, you might take as to the form of some of it, admissible. TERRACINI: That's right, except in relation to one that's Kate McClymont under the s 66A matter. We say s 66A does not apply. If we are wrong in that, then we would go back to-- HIS HONOUR: 137? TERRACINI: Yes." (T11.10 ff)
Consistent with that concession, his Honour later indicated in an exchange with the Crown that the argument had "reached a point where there is no issue taken as to its relevance in this case. It is a question of whether or not there is a danger of unfair prejudice" (T13.24).
The Crown noted that in this Court the applicant's submissions in support of Ground 6(a) did not appear to argue that the trial judge was in error in refusing to exclude the evidence in accordance with s 137 of the Evidence Act. Rather, the applicant appeared to argue contrary to the concession above, that while acknowledging that the evidence was "capable of proving the close bond and trust" between the applicant and Gattellari the evidence was not relevant (AWS [350]-[352]).

[35]

Applicant's argument on Ground 6

In Ground 6(a), the applicant does not challenge the trial judge's decision not to exclude the evidence under s 137 of the Evidence Act and concedes that the evidence was "capable of proving" the close bond and trust he had with Gattellari, which "was not in dispute" (AWS [354]).
No submissions are specifically directed to this first part of Ground 6, apart from a general assertion at AWS [352]-[353] that the admission of the evidence was contrary to the principle in Qualtieri v Regina (2006) 171 A Crim R 463; [2006] NSWCCA 95 and that it was "not apparent from his judgment that his Honour allowed the admission of the alleged surveillance of the deceased's wife".
In relation to Ground 6(b), the applicant argued in essence that the trial judge failed to direct the jury sufficiently as to the relevance of the debt collection and surveillance of Odetta Medich and how the jury could (and could not) use it.
The Crown submitted that those submissions are wrong for the following reasons.

[36]

Relevance of the relationship evidence

The Crown is permitted to adduce evidence relevant to the nature of the relationship of an accused with another person where it might explain or resolve an issue by placing the alleged events in their true context.
This is particularly so in a case alleging the existence of a joint criminal enterprise where a jury may draw conclusions, absent other evidence, about the nature of the association between the accused and alleged co-offender and where an attack on the co-offender's credibility (involving a different version of the relationship) is anticipated. This is especially so, where the relationship evidence also has a clear contemporaneity with the course of events pointing to the existence of the alleged joint criminal enterprise.
The Crown relied upon relevant facts in respect of the debt collection and surveillance of the applicant's wife which were set out in the Crown Case Statement which Bellew J cited in [7] of his judgment (R v Medich (No 8) [2016] NSWSC 1713), namely that: "195 The accused, from around 2008, also used Gattellari to organise and at times directly participate in collecting debts owed to the accused. Gattellari then, together with his associates, including Mathew Crockett, Senad Kaminic, Haissam Safetli would approach people who had not repaid their loans to the accused and intimidate them into making their repayments. 196 The accused did not pay Gattellari directly for the debt collection jobs but rather it was understood that Gattellari would use money either received from the accused generally or draw money from the electrical companies to pay the people who completed the 'jobs'. … 295 The accused also had Gattellari, in around February 2010, arrange for someone to conduct surveillance upon his wife, Odetta Medich. Gattellari arranged for a young man whom he knew and who was looking for work, Matthew Crockett, to conduct surveillance upon Mrs Medich for a few weeks. At the end of the surveillance (when Mrs Medich flew overseas) Crockett handed Gattellari a report of the surveillance to hand to the accused."
The relevance of the evidence of surveillance and debt collection carried out on the applicant's behalf, was identified in precise terms by the Crown in detailed written submissions at the pre-trial hearing before the trial judge.
The Crown noted that its written submissions acknowledged by reference to relevant authorities that a more rigorous approach was required than merely to ask whether evidence went to the nature of the relationship in some way or another. To be admissible, evidence as to background relationship between the accused and the other person must be relevant to a fact in issue (at [37]). The Crown specifically acknowledged that "statements [of principle] cannot be generalised into a proposition that all such evidence is relevant" (at [42]).

[37]

His Honour's judgment - R v Medich (No 8) [2016] NSWSC 1713

His Honour's judgment identified at [15], that the applicant's objections to evidence concerning his relationship with Gattellari fell into three categories, of which only categories (i) and (iii) were in issue on this appeal: 1. the surveillance of Odetta Medich in or around February 2010; 2. the continued close business relationship between the applicant and Gattellari after the murder and prior to the intimidation of Mrs McGurk which included the transfer of shares and companies and the granting of power of attorney; and 3. the use of Gattellari as his debt collector from 2008.
His Honour's summary of the Crown's submissions included the following (at [24]-[25]): "24 The evidence of the surveillance said to have been arranged in respect of the accused's wife was said by the Crown to demonstrate the inherent trust between he and Gattellari, and the close nature of their relationship at that time. A similar submission was made in relation to the evidence of the transfer of shares, and the granting of a power of attorney by the accused to Gattellari. It was submitted that such evidence demonstrated the "intense bond and level of trust" between the accused and Gattellari. It was further submitted that the evidence served to place the accused's request to Gattellari to have the deceased's wife intimidated into the proper context. The Crown further submitted that this evidence was capable of rebutting the suggestion that Gattellari had committed any act for his own reasons, and of his own accord. 25 Finally, the Crown submitted that the evidence of Gattellari's "debt collecting" carried out on behalf of the accused was further evidence of the extent and depth of the relationship between the accused and Gattellari. It was submitted that in the absence of such evidence, the jury would be left with the artificial view that the accused and Gattellari were involved in a conventional business relationship. It was submitted that the evidence provided the proper context of what the Crown alleges was the true nature of their relationship." (emphasis added)
His Honour noted that "the [applicant's] principal position", as per the oral submissions of senior counsel, was that the evidence should be excluded pursuant to s 137 of the Evidence Act ([26]) which included "an acceptance that the evidence is relevant under s 55."

[38]

Submissions in relation to Ground 6(b)

The gravamen of the applicant's complaint is that the trial judge did not assist the jury to evaluate the relationship evidence, the subject of Ground 6(a), in a way that did not give rise to tendency reasoning. The applicant did not contend that the evidence constituted "tendency evidence" within the meaning of the Evidence Act. The applicant contended that the evidence had the capacity to provide the foundation for tendency reasoning.
A review of the factual material makes it clear that this was not a case involving a significant risk of tendency reasoning in respect of the relationship evidence. The trial judge nevertheless gave a warning against the misuse of the evidence in this way.
In that regard, the Crown noted that the applicant had omitted from the evidence summarised in AWS [355] an introductory part in which his Honour addressed the relevance of the relationship evidence (at SU [47]-[48]) as follows: "I want to then come to a particular category of evidence which is relied upon by the Crown for the sake of shorthand, or putting a label on it, I am going to call it relationship evidence. You will recall that in the course of the trial the Crown has led evidence of a number of matters including evidence of surveillance which is said to have been carried out according to Mr Gattellari at the direction of the accused on the accused's former wife at some time leading up to the murder. There is also evidence given by Gattellari of what might be described as debt collecting activities in which he engaged or said he engaged from time to time. There is also of course the electronically recorded conversations between the accused and Gattellari which are relied upon by the Crown. There is also the evidence before you that on 2nd April 2010 the accused executed a power of attorney in favour of Gattellari - that is Exhibit X - and there is also evidence of the share transfer which were executed by the accused in favour of Gattellari as a consequence of which the accused transferred his shares in a number of companies to Gattellari. It is the Crown's submission to you that this evidence - the debt collection, the surveillance and the other evidence of the association if you like between the accused and Gattellari establishes that the accused and Gattellari had a very close relationship both before and after the deceased was murdered. Whether you accept that debt collecting activities were carried out, whether you accept that surveillance was carried out on the accused's wife at his direction, whether you accept that their relationship was close before the murder and was an ongoing close relationship after the murder are all matters for you to determine. But if you do accept that evidence to which I have referred and if you do accept that there was as the Crown has put to you a close relationship between the accused and Mr Gattellari, you must understand that the Crown has placed that evidence before you for a particular purpose and a particular purpose only." (SU 47-48)

[39]

[40]

Ground 7(b) - A miscarriage of justice resulted from the failure of the trial judge to direct that certain evidence relevant to Count 2 was not admissible for use in proving Count 1

[41]

Ground 7(c) - A miscarriage of justice resulted from the failure of the trial judge to warn the jury against impermissible tendency reasoning

The applicant accepted that r 4 applied to this ground. The submission by the applicant was that the accumulation of errors in this case was of such a kind as to demonstrate that the applicant had lost a real chance (or a chance fairly open) of being acquitted and in such circumstances, leave ought be granted in respect of this ground.
The applicant submitted that there was no question that the evidence tending to establish Count 2 could not be used by the jury to prove by tendency reasoning that the applicant committed Count 1. The applicant submitted that s 97 of the Evidence Act prohibited evidence of "the conduct of a person" being used "to prove" that the person "had a tendency to act in a particular way" or that the person "had a tendency ... to have a particular state of mind".
The applicant submitted that the items of evidence relied upon as corroborative of the applicant's concern in the events giving rise to Count 2 were only relevant to prove his agreement to murder (or to intimidate in 2009) on the basis of tendency reasoning. Those items of evidence were: 1. telephone intercept material between the applicant and Andrew Howard (between May and August 2010) including Howard referring to "getting the message to her" and Howard's commercial unconscionability (while employed by the applicant) by intending to bring external pressures upon the deceased's wife to achieve a settlement; 2. the applicant suggesting in a telephone call on 12 July 2010 at 12.11pm that a message ought "be gotten across to ... through our friends, you know, um, Richie and co" (this being a reference to Richard Vereker, a mutual friend of the applicant and the deceased's wife); 3. the applicant's tone of voice in various of the mid 2010 intercepts with Howard which were said to illustrate an increasing hostility over communications attaching to the litigation; 4. a lawfully intercepted telephone conversation between the applicant and Gattellari on 4 August 2010, which Gattellari claimed was to be understood as the applicant acknowledging their mutual intention to use a business trip to China as an alibi for the intimidation; and 5. an asserted consciousness of guilt said to arise from the applicant's conduct in failing to discuss with his daughter on 20 August 2010 an accusation made to him at a lunch at Arrun Thai, with mutual friends (on the same date) that the applicant was responsible for the visit to the deceased's wife.

[42]

Consideration

The applicant's submissions do not have sufficient regard to the way that the trial was conducted at first instance. The Crown case was that the murder of the deceased and the intimidation of his wife were part of the one single joint criminal enterprise which was to kill the deceased and then put pressure on his wife to settle the court disputes in order to get the applicant's money back.
The Crown alleged that the applicant was a participant in a continuing single joint criminal enterprise which encompassed both counts on the indictment with the agreement with Gattellari having incorporated (from an early stage) both the murder of the deceased and the subsequent intimidation of his wife. The Crown case was that both offences were the subject of the joint criminal enterprise from this early stage because they shared a common motive, in terms of the recovery of millions of dollars that the applicant believed he was owed by the deceased.
The obvious explanation for why senior counsel for the applicant did not seek the directions, the subject of this ground, was because this was the case that had been presented against the applicant at trial.
The evidence in support of the two counts was cross admissible not because of any tendency reasoning, but because it bore directly on the likelihood of the applicant having been party to the single joint criminal enterprise as alleged by the Crown. Given the ongoing nature of the single joint criminal enterprise alleged by the Crown and the shared common motive in respect of both offences, it was clear that the Crown was asserting a continuing state of mind on the part of the applicant. That concept did not involve tendency reasoning. The distinction between the two concepts is subtle but real. This was made clear by this Court (Bathurst CJ, Hoeben CJ at CL and Simpson J) in Elomar v R at [363] where the Court said: "363 As mentioned above, s 97 of the Evidence Act restricts only the admissibility of evidence to prove that a person had a relevant tendency. It does not restrict evidence that proves that a person in fact acted in a particular way, or in fact had a particular state of mind, if evidence is available to prove that fact without recourse to the syllogistic process of tendency reasoning. 364 It is one thing to say that a series of acts of a person can establish a tendency to act in a particular way. That makes perfect sense. Common examples are to be found in cases of alleged sexual abuse of children. That an accused person is shown to have abused one child (or a number of children) may be held to establish a tendency to act in a particular way. (From that, it may then be inferred that, on an occasion relevant to the proceedings, that person acted in conformity with that tendency.) 365 It may also be said, in appropriate circumstances, that a series of incidents is capable of giving rise to an inference that a person had a tendency to have a particular state of mind. Common examples again are to be found in cases of alleged sexual abuse of children. It may readily be said that the accused person has a tendency to be attracted to children. (From that, it may then be inferred that, on an occasion in question in the proceedings that person acted in a way alleged, or did so with the relevant state of mind.) 366 A state of mind, unlike conduct, is not necessarily a series of intermittent events, feelings or ideas. Commonly, a state of mind is continuous. Belief in a deity, opposition to capital punishment, support for a political philosophy are all states of mind. It would not be in accord with ordinary human experience or language to describe a person who held such beliefs as having a "tendency" to have the relevant state of mind. Rather, the person is said to have that state of mind. Proof of a state of mind may be direct, not indirect. In appropriate circumstances, it does not depend upon tendency reasoning. 367 Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person's mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference). It is therefore necessary to ask whether the evidence of Moustafa Cheikho's attendance at the LeT camp was evidence of a tendency on his part to support violent Islamic Jihad, from which the Crown would seek to have drawn an inference either (i) that he entered into the agreement alleged intentionally; or (ii) that he intended that a terrorist act would be committed in Australia. If that were the basis on which the Crown tendered the evidence, it would come within s 97 of the Evidence Act and the tests imposed by s 97 and s 101 would have to be applied. Alternatively, did the Crown seek to prove that Moustafa Cheikho in fact supported violent Islamic Jihad, from which, similarly, the Crown would seek to have drawn an inference that he entered the agreement alleged intentionally, or intended that a terrorist act would be committed in Australia? The former involves tendency reasoning; the latter does not. 368 The most powerful argument in support of the former proposition is the gap in time between Moustafa Cheikho's attendance at the camp, and the commencement of the alleged conspiracy. But that does not conclude the issue. Proof that a person held a particular belief on one occasion does not prove that he had a tendency to have that belief. It proves that, on that occasion, he did have that belief. There is no reason to think that, if Moustafa Cheikho had a state of mind that supported violent Islamic Jihad in 2001-2002, he did not continue to have that state of mind up to and including the time of the alleged conspiracy. 369 If it could reasonably be inferred from the evidence of his attendance at the camp, and the nature of the camp, that he had a state of mind that favoured militant Islamic Jihad, it may equally be reasonably inferred that he continued to have that state of mind up to and beyond 2004. That is not tendency evidence and does not give rise to tendency reasoning."

[43]

Ground 1 - The jury verdict in respect of Count 1 is unreasonable

[44]

Ground 2 - The jury verdict in respect of Count 2 is unreasonable

The principles applying to the consideration of an unreasonable verdict ground were not in dispute. They were clearly set out by the plurality (French CJ, Gummow and Keifel JJ) in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 (at [11]-[14]) as follows: "The task of the Court of Criminal Appeal 11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." ... 14 determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.""

[45]

Asserted difficulties with Gattellari evidence

The applicant submitted that Gattellari gave contradictory and wholly inadequate evidence on what the Crown asserted to be critical facts of the applicant's participation in the murder, namely the solicitation and funding of it.
In support of that submission, the applicant analysed the evidence said to give rise to the solicitation of the murder.
The applicant noted that in examination in chief Gattellari could not remember the "exact time" that the applicant first solicited him to murder the deceased and he could not "exactly" remember the words used. He was unable to nominate when the applicant's solicitation of him took place aside from a general assertion that "it would have been three to six months before the murder" (T359).
The applicant submitted that Gattellari otherwise gave inconsistent evidence in respect of his recollection on this topic, asserting that the first conversation in respect of the solicitation was on the date on which the applicant was in a car accident which other evidence adduced at trial established was 3 July 2009. The applicant submitted that the possibility of the solicitation occurring in July cast doubt upon anything the Safetlis did by way of surveillance and the alleged receipt of monies between February and June 2009 as having anything at all to do with a joint enterprise involving the applicant.
The applicant noted that the applicant's former solicitor, (Sundip Ghedia (Ghedia)), was called by the Crown and testified, by reference to a file note he created contemporaneously that in a conference held with Gattellari on 18 October 2010, Gattellari said that he was solicited to kill the deceased when he was present at the applicant's new office in Leichardt.
The file note of the solicitation recorded: " ... at Ron office at Leichhardt. After 12, new office down the road. He was going through paperwork at his desk." (T2348)
Ghedia also recorded, in respect of this meeting, that Gattellari had said "Senad was there". Kaminic testified that he did not witness the applicant solicit Gattellari.
After Ghedia had testified, Gattellari was recalled and maintained the account that the applicant did solicit him in the new offices. Gattellari had earlier asserted in his evidence that "a conversation or two would have taken place at that office at some stage, yes."

[46]

Timing and location of the solicitation

The Crown noted that at AWS [60]-[67] the applicant alleged that Gattellari's evidence about the time and place when he was first requested by the applicant to organise the murder of McGurk was inconsistent. The Crown also noted that the applicant submitted that there was a possibility that the solicitation had occurred in July 2009, which would cast doubt on whether the events said to have occurred in February 2009 and June 2009 had anything to do with a single joint enterprise involving the applicant.
In answer the Crown relied upon the following evidence of Gattellari about the initial request to murder the deceased: "Q. Was there a time when the accused, when he was being verbal and angry about the deceased, expressed that he wanted you to do something? A. Yes, I don't remember the exact time, but at one - one incident, or an incident that happened on that particular day, he was quite angry and upset and at that stage he asked me would I possibly help him out by finding someone to kill the bastard. Q. Do you remember the words that he used? A. Not exactly, but it was basically, you know, "I've got to do something about this. I've got to put an end to all this bullshit and if you can help me, find someone to kill him". Q. You said that there had been an incident that day. When you say "an incident", was it something that had happened between the accused and the deceased? A. I think he had been involved in an accident that he believed was deliberately - or something else, I'm not sure. Look, I can't remember the timeline of everything that took place. … Q. Where were you when the accused asked to you do that? A. We were in the office at Leichhardt. Q. Were you alone with the accused? A. Yes, I was. Q. Was there anybody else in the office at all? A. Well, we had a receptionist in the office and Senad would have been somewhere in the office area." (T348.5)
As to the timing, Gattellari said as follows: "Q. Mr Gattellari, Mr McGurk was murdered on 3 September 2009. Do you remember how many months prior to the death of the deceased that you had the conversation with the accused where he told you to find someone to kill him? A. I don't remember exactly how long it was, no. It would have been three to six months, I think." (T359)
The Crown submitted that contrary to AWS [61], Gattellari did not give inconsistent evidence on this topic. The Crown submitted that the evidence of Gattellari as set out clearly demonstrated that his evidence in relation to any link between a car accident that the applicant believed was deliberate and the timing of the solicitation was heavily qualified. The Crown noted that Gattellari's evidence included reference to the fact that it could have been "something else" and that he was "not sure". He could not "remember the timeline of everything that took place".

[47]

The timing of dealings with the Safetlis

The Crown submitted that at AWS [69]-[74], the applicant was attempting to create a "Safetli plot" based on selective parts of the evidence, removed from its proper context. The Crown submitted that properly analysed, the evidence of Kaminic did not offer any support to the existence of a "Safetli plot" independent of Gattellari's request. The fact that there was no dispute at trial that Gattellari paid Safetli for carrying out the murder, confirmed this.
The Crown noted that the background to the relationship between the Safetlis, Gattellari and Kaminic was that Gattellari had been introduced to Bassam Safetli by Kaminic when they visited one of the factories in Chipping Norton and he undertook some delivery work because he had a light truck (T344). Later Gattellari met his brother, Haissam Safetli. They later started collecting debts on behalf of the electrical companies and the applicant. There was said to have been three or four jobs towards the end of 2008 to early 2009 (T345).
The Crown submitted that it was in the context of this work that Gattellari recalled a conversation after one of the jobs where Bassam said "In the future, if you ever need anything heavier or you want the final job done, we would be happy to do it" (T347.40). Gattellari could not recall whether the Safetlis were debt collecting for him at that time, but the conversation came up after they had delivered someone a message (T1037). According to Gattellari, this statement was "out of the blue" (T348, 1036) and it did not relate to the deceased because he had not come up yet (T1038).
The Crown noted that the applicant's contentions with respect to the "Safetli conversation" concerning the photograph of the deceased in the newspaper had already been addressed in relation to Ground 4.
The Crown noted that when the Safetli conversation (involving Haissam Safetli saying 'you've got a problem with this fellow. You need to kill him") was put to Gattellari, he said that he did not recall such a conversation and that he had not seen the photograph before (T601). However, he agreed that it was "quite possible" that the Safetlis and Kaminic came to his home in early February 2009. He did not think the conversation involving Safetli asking "If you ever need any heavy sort of work, we will be able to carry it out" took place then and disagreed that the Safetlis were asked to undertake surveillance at that meeting (T609).

[48]

Purported unresolved problems between Gattellari and the deceased

The Crown submitted that contrary to the applicant's submissions at AWS [34], there was no evidence at trial of "likely unresolved problems between" Gattellari and the deceased in 2009, or even in 2008. The Crown submitted that the applicant's submission is based on Kaminic's evidence.
The Crown further submitted that properly understood, Kaminic's evidence of one visit with Gattellari to the deceased's office was the same occasion described by Gattellari when he asked the deceased to stay out of his business. It was treated that way by senior counsel for the applicant when he cross-examined Kaminic. Kaminic was unsure of the precise date, agreeing it could have been November/December 2008. However, there was independent evidence which dated that visit as 13 May 2008.
The Crown noted that there was no other evidence of any subsequent dealings between Gattellari and the deceased.

[49]

The first cash payments

The background to the applicant's submission in relation to payments emerges from the following material.
When Gattellari was cross-examined about the first cash payment, he could not identify in what month the money was provided. Gattellari claimed that Kaminic was present at the time of this payment and the two men had travelled together to the applicant's home where he and Kaminic went to the ground level and the applicant said "I will go get the dosh for you". The two men drove back to Gattellari's home inn Chipping Norton where Gattellari took out $45,000 cash and provided it to Kaminic.
Gattellari was cross-examined in relation to his different accounts at each trial concerning how the money was given to him by the applicant. At the first trial, his account was consistent with Kaminic having been in the position to have seen the cash, but at the second trial Gattellari maintained that the money could not be seen. Both accounts were consistent with Kaminic being present.
Gattellari was cross-examined as to his inconsistent account provided at committal proceedings where he asserted that the applicant gave him the two cash payments at his (the applicant's) office. Gattellari accepted that this evidence as to the office was wrong and that he had made "a mistake".
The applicant submitted that no support was forthcoming from Kaminic in relation to any of Gattellari's accounts on this topic; not as to Kaminic's presence at the applicant's house with Gattellari when anything of the sort was said or done by the applicant, nor the provision of cash by the applicant to Gattellari.
According to Gattellari, out of the $250,000 in cash, $45,000 was provided to Kaminic on the understanding it was to be provided to Haissam Safetli and "the rest of the money went back … I injected the money back into the companies". However, Kaminic claimed not to have given either of the Safetlis $45,000. Kaminic recalled Gattellari giving the Safetlis a bag which Gattellari claimed contained $50,000.
Kaminic understood that this was for surveillance of the deceased. Other evidence established that the applicant had not asked for the deceased to be surveilled.
The applicant submitted that later Gattellari gave another inconsistent account about the $45,000 and said in cross-examination that he did not pass on to Kaminic any of the funds originally received for the murder: "[W]hat I passed on to Mr Kaminic was money taken out of the companies after the murder to pay for the murder."

[50]

The second cash payment

The applicant noted that Gattellari maintained that the second cash payment was made in the same way as the first and amounted to $250,000 cash and Kaminic was present on this occasion as well. He could not identify in what month the money was provided.
The applicant noted that on the evidence of Gattellari, this cash was not used to pay anyone for the enterprise and rather was "distributed to a number of the companies", "distributed between different companies and used for whatever it was required for." Following on from this answer defence counsel asked, "Well to whom?" Gattellari responded: "Mr Shipley, Halena, me, paid into credit cards, paid into other dealings purchasing equipment and material for the companies - it was used."
The applicant noted that there was further evidence from Gattellari which directly contradicted this aspect of his account when in re-examination he said that he did not believe that he gave Halena Kmita any of the cash for the murder for use in the companies.
Gattellari said that he did not himself bank the enterprise monies given to him from the applicant.
The applicant noted that there was no evidence adduced by the Crown capable of proving Gattellari's account of how he dealt with this second provision of cash. Gattellari testified by reference to this second payment that the money remained in his safe at home for a "short time and, once again, as nothing was happening, I distributed it through the companies into what it was needed for."
The applicant submitted that in this context, the Crown adduced no evidence of the circumstances attaching to the delay but adduced evidence from Gattellari that he complained to his friend Ron Mason (Mason) that: "I expressed to him that I was doing a job for Ron that I'd got these guys to do and it just wasn't happening, and I don't know what to do." Gattellari testified that he told Mason exactly what the job was "to have someone killed" and Mason "basically indicated that he knew somebody that may be able to help me with my problems." Gattellari claimed that a meeting was then organised by Mason with a person by the name of Danny Landini.
The applicant submitted that Gattellari's testimony in respect of the approach to Mason and the meeting with Landini was not supported on critical aspects by the evidence of Mason or Kaminic.

[51]

The source of the applicant's cash

The applicant submitted that no financial records were adduced at trial to establish that the applicant had access to $500,000 in cash at any relevant time in 2009. The applicant noted that it was the Crown case that the likely source of the applicant's cash was Les Samba, a horse racing associate of the applicant. This submission was derived from Gattellari's evidence in chief: "Q. Did the accused ever tell you where he had sourced the two lots of $250,000 that he had paid for the murder of Michael McGurk from? A. He didn't actually say, "I got the money from Les", he just made comment one of the times, I can't remember whether it was the first or the second time, that Les will be in town, is coming into town, and "I'll give you the rest of that dosh", something like that."
The applicant submitted that according to Gattellari, he did not assert that he received the enterprise money from Les Samba, however, Gattellari testified that "Ron told me that that's where he gets his money from, but I never seen it happen". The Crown adduced no evidence that Samba had access to this kind of cash. Samba died before the applicant's first trial.

[52]

Monies paid to the Safetlis for the enterprise and Gattellari's ledger

[53]

Monies allegedly paid to the Safetlis before the deceased's murder

The applicant noted that according to Gattellari, $45,000 in cash was passed to the Safetlis, either by himself or by Kaminic, in pursuit of the enterprise before the murder and at an unspecified time.
A ledger in Gattellari's handwriting purporting to be a record of the initial payment to the Safetlis was tendered by the defence (Exhibit 6) and it recorded two things in a 2009 diary namely; at the end of a page headed "Planning 2009 July, August, September", Gattellari had written: "OPENING 39,000k 5/5/09 4K"
In cross-examination, Gattellari said that this document "must be" a reference to the first payment to the Safetlis in respect of the joint enterprise.
The applicant submitted that if this diary entry was a ledger of some kind recording payments to the Safetlis, it did not record a payment of $45,000 as contended for by Gattellari, but rather two amounts inconsistent with his account; each of which was improbable if the source of the money was cash currency provided by the applicant. If the Safetlis had requested $50,000 up front there was no reason not to have given them this amount out of the $500,000 in cash.
The applicant submitted that confronted with the inconsistency, Gattellari claimed that he must have merely been told by Kaminic that Safetli "only got 39". This answer was inexplicable in light of that evidence from Gattellari that it was not Kaminic who gave the Safetlis this money. In this respect, the evidence was: "Q. How much, then, in total, did you give to Mr Senad Kaminic to pass on to the people who apparently were going to murder Mr McGurk? A. Well to answer that question, of the original funds that were received for the murder, I didn't pass on any of that money to Mr Kaminic. What I passed on to Mr Kaminic was money taken out of the companies after the murder to pay for the murder."
The applicant submitted that the ledger was not consistent with Gattellari's recollection that he had retrieved the money to pay the Safetlis himself: "Q. Did you count the $45,000 that you gave to Mr Kaminic? A. No, I took four lots of 10,000 lots and opened one and took 5,000 out of it." (T711.30)
The applicant submitted that while the Crown adduced no evidence from the Safetlis that they were paid any monies at this time by Gattellari, the defence established a likely source of the funds recorded in Gattellari's ledger namely his own company Riv Developments (RivDev) (and not cash currency out of the enterprise money provided by the applicant).

[54]

Events the day after the murder

The applicant noted that Gattellari claimed that he learned of the deceased's murder when it was broadcast on the television news. The next morning, he said to Kaminic "Fuck, I think they've done it". Gattellari gave evidence that he and Kaminic drove to Leichhardt on the morning and once there: "I think I walked into the office and I said: "Well it's done. Are you happy now, it's all finished?" and the applicant responded: "Well, it's taken fucking long enough for it to happen and look at the shit it's caused because of how long it's taken." (T369.47)
The applicant noted that Kaminic did not give evidence of the pair going to the applicant's office that morning or of any conversation of the kind alleged by Gattellari. Kaminic could recall instead of going to Gattellari's house where he gave Kaminic a gun to hide, which Kaminic then hid at his sister's house and then the two men went directly to lunch at Tuscany with others including the applicant.
The applicant submitted that contrary to Gattellari's account of arriving at Leichhardt with Kaminic and meeting with the applicant in his office, Howard gave unchallenged evidence that he and the applicant drove to Leichhardt together the day after the deceased was murdered and were the first to arrive at lunch at Tuscany restaurant. Some time later, the applicant's daughter, Gattellari and Kaminic arrived at the table.

[55]

Payments after the murder

The applicant noted that Gattellari gave evidence that he could not remember how much money had been paid to the Safetlis by the time the deceased was murdered.
Gattellari acquiesced to the proposition that $300,000 was paid to the Safetlis for the murder and this was in addition to the original $45,000 for expenses and $5,000 for the Jindabyne snow trip. He agreed that the final payment was constituted by the provision of a motor car (a Honda Jazz), the value of which was $7,000 or $8,000. In total $450,000 or $460,000 was passed to Kaminic for both offences and this included $100,000 in cash provided by the applicant on 30 July 2010 for the intimidation. All of these monies Gattellari understood were passed on to the Safetlis.
When asked when the cash for the murder was withdrawn from the electrical companies, Gattellari said "It was over a long period of time ... some in January, some in February, some in different months. The last payment to Safetli was the Honda Jazz. As to when this last payment was made Gattellari gave evidence that a telephone intercept of 6 February 2010 established that by this time the only outstanding amount was $5,000, and this was then paid by the provision of the Honda. Accordingly, the applicant submitted that the inference to be derived from Gattellari was that these monies were paid out between January and 6 February 2010, yet not a single withdrawal from the company accounts was identified as constituting any such payment.
The applicant noted that Gattellari said that in respect of these payments "it's all written down." Such a record was not produced by the Crown and Gattellari suggested that the police had lost or tampered with it. Gattellari testified to the existence of a sheet that detailed the dates and payments made to the Safetlis which he thought was in his diary. In examination in chief Gattellari said that a "portion of that record was shown to me after my arrest" but he could not explain at that time what had happened to the balance of the record. The Crown Prosecutor showed him a document (MFI 10) and Gattellari said that this was not the document. In cross-examination, he stated that he had "no idea what happened to it". According to Gattellari, police must have misplaced "a full page of payments made to the Safetlis" and "cut it" in some way.
Officer Blanche, one of the police officers who executed a search warrant at Gattellari's home on 7 September 2009, gave evidence that Gattellari's 2009 diary was seized and not tampered with in any way.

[56]

Other payments to Haissam Safetli

The applicant noted that Gattellari claimed that he provided benefits to Haissam Safetli after the murder including a $40,000 loan to help him "save his farm" and assisting him and his brother with the use of one of the company factories for a business they were starting. Gattellari accepted that the applicant did not authorise the $40,000 loan.
The applicant noted that on 20 September and 2 October 2010, after such time as Safetli began assisting the investigation, Gattellari gave him $10,000 in cash on two occasions. Gattellari admitted that he was helping Safetli with his legal fees and that the source of the first payment was a cheque from Jerry Gordon, who had nothing at all to do with the electrical companies. The second $10,000 Gattellari accepted may have come out of his own company, Riv Developments. It was the applicant's position that the Crown did not prove that Safetli was assisted at this time by monies derived from him (the applicant).
The applicant noted that Detective Senior Constable Blanche was cross examined in respect of what Haissam Safetli conveyed to him about monies given to him by Gattellari at this time and Safetli disclosed that in addition to the $20,000 in cash Gattellari had also given him a fake Bulgari brand watch.
The applicant submitted that the fact that Gattellari was paying off Safetli with a low-value Honda, monies loaned but unauthorised by him, an imitation watch and cash from his own company account did not dispel the doubt which was otherwise raised on the evidence as to the applicant being the financier of the offences.

[57]

Conclusion on the enterprise money

The applicant submitted that no objective evidence was adduced that was capable of implicating the applicant in the provision of cash currency for the murder nor the payments made to the Safetlis either before or after the murder.

[58]

Crown submissions in response on evidence concerning payments

The Crown submitted that at AWS [75]-[99], the applicant relied upon alleged inconsistencies in Gattellari's evidence of cash payments provided by the applicant to establish that such payments were not made by him (the applicant). The applicant submitted that Kaminic's evidence provided no support for Gattellari on this topic. In further support of this proposition, the applicant relied upon the submissions made by him in support of Ground 3, i.e. the Crown did not adduce financial records supporting Gattellari's evidence that he used the enterprise money initially for the purposes of the electrical companies. In response the Crown also relied upon the submissions which it made in respect of Ground 3.
The Crown relied upon the following additional submissions. The Crown noted that there was uncontested evidence that the business practices concerning the electrical companies were ad hoc and informal and reflected poor financial management.
The Crown submitted that the following bodies of evidence provided a realistic perspective against which to assess Gattellari's evidence that he used the "enterprise money" advanced by the applicant initially for the companies' purposes and later withdrawing monies from the companies' accounts to pay Safetli. The evidence relied upon by the Crown was as follows: 1. as set out above, between May 2008 and August 2010, Riv Group, a company controlled by the applicant, provided almost $17 million to the electrical companies via Riv Developments, being the company controlled by Gattellari. The "loans" by Riv Group were not secured or documented. Kevin Munro, the applicant's solicitor of 25 years, gave evidence that this was not sound practice (T2754-5 (Collis)); T2744 "companies associated with Mr Medich invested $17 million" (T2473; T1439, T1447-8 (Shipley)); see Exhibit AY as to the company structure of Medich's companies, T2751.20 (Collis), T2716 (Munro); 2. Riv Developments was a "conduit" through which the funds would move to the electrical companies (T2754 (Collis)). The normal way in which funds would be disbursed from the Riv Group was first to Riv Developments and from there, the money was distributed to where it was needed in the electrical companies (T1440 (Shipley)); 3. there was no formal documenting of "cash injections" into the electrical companies (T1809 (Shipley)); 4. there were a lot of intercompany transfers between the electrical companies that "just cycled cash around" (T2761.25 (Collis)); 5. there was no formal documentation in relation to many of the transactions conducted, as the liquidator found in his investigation in 2011 (T2751.15 (Collis)). Company records were in "a state of turmoil" (T2744 - 2745); 6. the directors of the electrical companies, including Gattellari, would use their personal credit cards and then reimburse themselves from company funds (T2756-7 (Collis)); 7. Shipley was the acting chief executive officer of the companies (from the end of 2008) and reported to the applicant and Gattellari in 2009 and 2010 (T1441-1442, 1451 (Shipley); Shipley talked to Gattellari daily and met with the applicant about once a week, had telephone conversations with him "regularly" and provided written reports: T1442-3). When the electrical companies needed money, Shipley would ask Gattellari for funds (T1463; T1490; T1531; see also Exhibit T2 (call 14 December 2009 at 13:56). The need for funds would arise regularly. Meeting payroll obligations was a concern from time to time (T283.33 (Gattellari)); 8. Shipley gave evidence that Gattellari would carry around large sums of cash and would normally pay for everyone at the lunches, including the applicant. In 2008 Shipley asked Gattellari for $150,000 for the payroll and Gattellari provided it in cash from a Myers shopping bag, saying he sourced it out of the applicant's safe (T1451 (Shipley)); 9. Shipley denied that he would be told about any cash payment that any person could have made to the companies (T1520.41 (Shipley)); 10. Gattellari had access to the companies' cheque books, had a personal assistant Halana Kmita, and would have cheques made out to cash prepared for him from time to time by Kmita, Shipley and the financial controller (T1449-1450 (Shipley)). He regularly asked for cash cheques to the sum of $10,000, saying they were interest payments for the applicant (T1450; T1480 (Shipley)); 11. Gattellari told Shipley that he also used funds that came through Riv Developments for his own purposes (T1449, T1454 (Shipley)). This included lending money to people; 12. between June 2008 and September 2010, Gattellari received payments from the electrical companies totalling $2,676,173.45, comprising drawings by electronic funds transfer (including payments to credit cards) and cash cheques (totalling $755,875) (T2738 - 8, T2755; Exhibit 72). The liquidator was not able to determine whether the funds paid to Gattellari's benefit were for business or personal purposes (T2757.10 (Collis)); 13. Gattellari would host lunches at which people from the electrical companies attended and Gattellari would pay (T2947 (Howard)); 14. according to Gattellari, he had "permission from Mr Medich to use the funds in all of the accounts as I saw fit". There was telephone intercept material to support that evidence (for example on 21 December 2009 at 11.48am at p3; also conversation on 23.9.10 where the applicant said "That's in the companies he normally handles. They normally handle that" (Exhibit AT); 15. the total cash cheques withdrawn from the electrical companies between June 2008 and September 2010 were $934,000 (T2736 (Collis)). There was evidence that when cash cheques were cashed at the bank, the money was brought back to the company and given to Gattellari (T2748-2749 (Collis)); 16. the electrical companies were used as a "slush fund" for the applicant. Telephone intercepts supported Gattellari's evidence that he regularly provided cash to the applicant, at his request, out of the electrical companies. For example, in one call the applicant asked Gattellari whether he could transfer $200,000 from the electrical companies because he was short of cash (T300; 2 February 2010 at 8.56am); 17. mistakes were made with business decisions. In the context of a meeting on the progress of the takeover of Rivercorp in January 2010, Shipley told the applicant "Look Ron, to be very honest with you, ... we've all got some shit to wear over this" (13 January 2010 at 5.02pm, p 42 of the bundle V2); 18. on or about 30 June 2010, the applicant transferred the ownership of all of the electrical companies from Riv Group to Gattellari's company Riv Developments for a nominal fee of $12 (T1461, T1475 (Shipley)). This was the first time the applicant's investment of around $17 million was secured. The evidence of Gattellari was that this was done to keep the applicant's wife away from the electrical companies. Telephone intercepts provided support for his account (T295: call on 14 January 2010 at 5.33pm; T301: 3 February 2.10 at 1.40pm). Howard said that the perceived connection of the applicant to the murder resulted in the companies getting less jobs and the applicant conveying the companies back to Gattellari (T2949 (Howard)); and 19. by the time of the liquidation in 2011, only a "fraction" of the moneys ($17 million) that had been invested by the applicant was left in the companies and the money that the liquidators did recover was expended in the costs of liquidation (T2744 (Collis)). No money was paid back to the applicant.

[59]

The source of the applicant's cash

The applicant's submission was that the Crown did not attempt to prove the source of the applicant's cash (AWS [100]-[104]). In that regard, the Crown submitted that while the applicant was entitled to point to the absence of any direct evidence on the issue and ask that it be taken into account in weighing the sufficiency of proof, the source of the applicant's cash was a matter of little significance to the trial overall. The Crown submitted that in any case, Gattellari's evidence about the possible source of funds was qualified and somewhat speculative.
The Crown submitted that there was ample unchallenged evidence that the applicant was a man of considerable wealth, with diverse business interests, that he utilised very little or no record keeping for business transactions or loans in amounts of hundreds of thousands and even millions of dollars and that he and Gattellari often dealt in cash in significant sums.

[60]

Listening device material of September and October 2010

The applicant noted that after Haissam Safetli agreed to assist investigators, he participated in a number of recorded conversations with Gattellari and Kaminic in September and October 2010. The applicant assumed that the operational objective of these conversations was to obtain admissions from the parties and in particular, any material which would assist investigators in respect of the involvement of the applicant.
The applicant submitted that the conversations provided no support for Haissam Safetli having ever received any cash payment in the circumstances alleged by Gattellari for the murder or intimidation.
The listening device material in one conversation revealed Gattellari guaranteeing that he would look after Safetli financially in circumstances where there was no such thing promised by the applicant. The applicant submitted that in cross-examination Gattellari was forced to accept that he had had no contact with the applicant contrary to what was implied in those conversations. Gattellari conceded that he had no guarantee that the applicant would make any payment at all towards legal fees. The applicant submitted that this conduct on the part of Gattellari was an example of him being caught out in falsely implicating the applicant in the murder and representing as much to other members of the enterprise for his own advantage.
The applicant submitted that the listening device material also captured the assertion by Gattellari that Safetli had "nothing to do" with the applicant. The applicant noted that in response to Safetli suggesting that "Mr Big" was being protected, Gattellari said "But there's no fuckin Big. There is no Mr Big we're arguing about the wrong fucking thing".
The applicant noted that Gattellari was recorded as understanding at this time that police wanted evidence in respect of the applicant. In one of the intercepts, he is heard to say "Ron's reputation and life is in stake here" but when asked earlier by Safetli "What's Ron got to do with it?" and later "What did he do?" there was no response from Gattellari incriminating the applicant.

[61]

The Crown response on the listening device evidence

The Crown submitted that the instances identified by the applicant relating to the listening device material was selective and provided a distorted view of what had been said. The Crown submitted that in order to understand the listening device material, it was necessary to place the content of the conversations in their proper context.
The Crown noted that there were six recordings tendered in evidence which occurred on: 15 September 2010 (AC2 transcript); 20 September 2010 (AD2 transcript); 2 October 2010 (AE2 transcript); 5 October 2010 (AF2 transcript); 8 October 2010 (AG2 transcript) and 13 October 2010 (AJ2 transcript). The identified participants in each recording were Haissam Safetli, Kaminic and Gattellari. The first recording occurred after both Gattellari and Safetli had been called to the NSW Crime Commission to give evidence and a substantial part of the conversation related to topics brought up by the Crime Commission.
The Crown noted that in respect of that recording, the applicant submitted (AWS [133]-[134]) that because they discussed how benefits provided to Safetli, including land and a Honda, could be innocently explained, this carried an implication that no cash payments emanated from the applicant. The Crown submitted that such reasoning should be rejected. This was because it was clear from consideration of the whole transcript that the identified topics were reactive to what had been raised in the Crime Commission.
The Crown submitted that Gattellari and Safetli were heard to discuss the topic of financial support for Safetli's legal fees which was expected to be forthcoming from the applicant. Safetli said that he needed a "QC and Barrister" and Gattellari responded "Exactly. Ask him to give you a fucken deal and I'll organise". Gattellari then said: "My problem is this, my problem is I don't have an inch I can move. I have to get it from interstate, he won't be here until Saturday. The guy's got 'a back you. You got'a tell him it's okay, but I can't I can't write you…" (P3-4). (emphasis added)
Gattellari gave evidence that he was trying to placate Safetli while he was attempting to contact the applicant to explain to him what was happening. The applicant was interstate and Gattellari was waiting for him to return (T456).
Moreover, at the conclusion of the conversation the following exchange occurred (p15): "Safetli: Is the big boss alright? Gattellari: Yeah, oh they're putting a lot of pressure on him. You see he's got the divorce going through now." There was no issue that the applicant was at the time going through a divorce.

[62]

Contention that Kaminic's evidence did not support Gattellari

The applicant submitted that Kaminic provided no support for Gattellari on critical aspects of his account of the applicant's involvement in the murder or the intimidation or the single joint criminal enterprise which the Crown sought to prove. The applicant noted that the Crown did not seek to challenge Kaminic in respect of these aspects of his evidence which were unfavourable to Gattellari and the Crown's case theory.
The applicant referred to the following matters concerning the evidence of Kaminic, which emerged from the telephone intercepts and did not favour the Crown's case theory. These matters were: 1. Kaminic gave no evidence of any conversation he had with the applicant about the murder or intimidation; 2. Kaminic gave evidence that he was not present when Gattellari and the applicant had any discussions about paying anyone to kill the deceased nor for any conversation during which the applicant discussed paying Gattellari for the murder; 3. Kaminic was not a witness to the applicant providing any enterprise money to Gattellari which directly contradicted Gattellari's account of the applicant's participation in the murder, including that Kaminic was "next to him" when the applicant provided the monies; 4. the first that Kaminic heard of any plan to intimidate the deceased's wife was not until late 2009 or early 2010, which directly contradicted Gattellari's account; 5. according to Kaminic, he did not provide any cash monies to either of the Safetlis before the murder in pursuit of the murder or intimidation which directly contradicted Gattellari's account; 6. Kaminic witnessed Gattellari giving a bag to the Safetlis at the Milano restaurant in Lansvale in around March or the beginning of April 2009 which Gattellari said contained $50,000; 7. Kaminic was not present for the resolution of any meeting of the minds as between Gattellari on the one hand and both of the Safetlis to murder the deceased for $300,000 plus expenses. The applicant submitted that the high point of Kaminic's evidence on this topic was Gattellari asking him to organise a meeting with Haissam Safetli at which Gattellari asked Haissam if he was "still to go all the way", "is the offer still on the table" to which Safetli said "yes" and Haissam was asked for his terms and conditions which were subsequently texted to Kaminic, "$50,000 up front, $250,000 after finishing the job and with one to three months it will be done"; 8. Kaminic testified that in May 2009 he passed on a message to Haissam that if the job was finished while the applicant and Gattellari were in China, there would be a bonus and although he sent the message he did not receive any reply; 9. Kaminic agreed with a leading question by reference to no specific occasion that Haissam told him "between May and September 2009" that "he was still getting ready and it would be done"; 10. Kaminic gave no evidence of any further conversation with either of the Safetlis as to the arrangements for the murder until apparently a month or so before the deceased was killed after such time as Gattellari had told him to stop whatever it was he was doing and Haissam claimed that he was prepared to murder the deceased for free; 11. Kaminic was not present at any meeting with Danny Landini. According to Kaminic it was Haissam Safetli who attended at the Malabar RSL and Kaminic observed as much because Gattellari had asked him to go to the club to "see whether Hass will come there"; and 12. Kaminic was not present for the resolution of any meeting of the minds as between Gattellari on the one side and the Safetlis to intimidate the deceased's wife in 2009. The applicant submitted that this also directly contradicted Gattellari's account.

[63]

Crown response to asserted conflict between Kaminic and Gattellari

The Crown submitted that the applicant's assertion that Kaminic provided no support for Gattellari on critical aspects of his account of the applicant's involvement in the murder or the intimidation or the single enterprise did not withstand scrutiny.
The Crown submitted that the Crown Prosecutor did not "improperly obscure" the differences between the evidence of Gattellari and Kaminic. On the contrary, the Crown Prosecutor addressed the jury that there "are clear differences … between Gattellari's recollection and Kaminic's recollection" and that these were raised in the opening. The Crown submitted that its position was that despite those differences on essential aspects, the evidence of Gattellari and Kaminic were the same.
In supporting that submission, the Crown identified certain pieces of evidence and sought to demonstrate how they supported the Crown case and the evidence of Gattellari: 1. their evidence was consistent that the initial conversation in which the applicant asked Gattellari to find someone to kill the deceased took place in the applicant's office. Gattellari said Kaminic "would have been in the office" but not present in the actual office where he was speaking to the applicant. This was consistent with Kaminic's account; 2. Gattellari's evidence was that he relayed the conversation to Kaminic in the car on the way home. This accorded with Kaminic's evidence; 3. the effect of Kaminic's evidence was that this conversation took place in March 2009, consistent with Gattellari's evidence as to it being three to six months before the murder; 4. Gattellari's evidence that he met the Safetli brothers a few days or weeks after that conversation and that Kaminic arranged that meeting accorded with Kaminic's evidence. Kaminic said that after Gattellari had told him in the car that the accused wanted to go all the way, he organised a meeting between Haissam Safetli and Gattellari; 5. Gattellari said Haissam and Bassam Safetli were present at the meeting arranged by Kaminic, and Kaminic recalled that Haissam Safetli was there. Both of them were consistent that at that meeting Gattellari asked whether the offer by the Safetlis to go further was still on the table; 6. Gattellari's evidence that the two brothers came back later with a price and an agreement that they would do it was consistent with Kaminic's account that Gattellari asked at the meeting what their terms or conditions would be; 7. Gattellari's evidence that he was notified a day or two later that they would do the murder for $300,000, plus some cash upfront for surveillance and expenses, was entirely consistent with Kaminic who gave evidence that, after the meeting with Safetli, he received a text message from Safetli that evening saying: "50,000 upfront, $250,000 after finishing the job and within one to three months it will be done." Kaminic said he passed the message along to Gattellari; 8. Kaminic's evidence that Gattellari told him that he had to check if it was okay, which Kaminic understood to mean checking with the applicant, accorded with Gattellari's evidence that he did check the amount with the applicant; 9. both Gattellari and Kaminic gave evidence that Safetli was paid a deposit, and the amounts were similar ($45,000 and $50,000); 10. both Gattellari and Kaminic gave evidence that the Safetlis conducted surveillance of the deceased, although they differed as to the timing of this. They both said that the Safetlis produced a CD of photos of the deceased and that the surveillance was done on the applicant's behalf; 11. both Gattellari and Kaminic gave evidence that there was a delay in the commission of the murder, and Kaminic gave evidence that he heard occasions when the applicant asked what was happening, including asking "is there any news of our friend?" on the applicant's return from China on a trip with Gattellari. Both Gattellari and Kaminic gave evidence that there was a request to commit the murder while the applicant and Gattellari were away in China in May/June 2009; 12. consistent with Gattellari's evidence, Kaminic said that Gattellari told him that there was pressure on him to carry out the murder, and that he saw the applicant tense and under pressure. He heard Gattellari say to the applicant "it's happening and don't worry about it"; 13. Kaminic said that in the weeks leading up to the murder, he heard Gattellari and the applicant speak about Mr McGurk "all the time . They didn't stop"; 14. Kaminic's evidence was consistent with Gattellari's evidence about the approach to Ron Mason to do the job; 15. Kaminic's evidence also provided support for Gattellari's account of the applicant informing him that the deceased could be found at the snow fields in July 2009, and the provision of extra money to the Safetlis for this purpose; 16. Kaminic's and Gattellari's evidence was relevantly the same that after the murder Gattellari, gave to Kaminic amounts of cash to give to the Safetlis. Gattellari said that they were in amounts of $10,000, $20,000, $30,000. Kaminic gave evidence that Gattellari gave him sums of $5,000, $10,000, $20,000 and on one occasion $40,000, totalling he believed $150,000 which he delivered to Haissam Safetli; 17. Kaminic's evidence was consistent with that of Gattellari with respect to the approach to Daniel Costa, a friend of Kaminic, to carry out the intimidation; 18. Kaminic's evidence as to Gattellari's request for him to find somebody to visit Mrs McGurk and deliver a message was consistent with Gattellari's evidence, including as to Safetli then quoting $100,000 for the job and Gattellari having to check with the applicant; and 19. Kaminic gave evidence consistent with that of Gattellari about the payments for the intimidation, being $50,000 paid to Safetli before, and $50,000 after the intimidation when the applicant and Gattellari had returned from China. Both gave evidence that Kaminic gave the second lot to Safetli.

[64]

Statements of the applicant to persons other than Gattellari

The applicant noted that the Crown relied upon admissions said to have been made by him to persons other than Gattellari as providing circumstantial support for the case against him.
Kaminic testified by reference to no date that the applicant said at lunch on one occasion at Leichhardt "he told a solicitor "if I had a gun I would kill him" (T1215.10-33). The applicant submitted that this evidence was based upon an assumption by Kaminic that the comment was referable to the deceased. Kaminic said that this was said after the applicant had "just returned" from a meeting with presumably the same solicitor. The applicant further noted that the comment was disputed in the defence case. The applicant noted that the scenario of a lunch having taken place in circumstances where the applicant had come from a meeting with his solicitor was put to Kaminic as having occurred on 19 February 2009. It was also put that Andrew Howard was present. The applicant accepted that this timing was possible and said that he had previously given evidence that Andrew Howard was present at this lunch.
The applicant submitted that evidence from Andrew Howard and the applicant's solicitor, Kevin Munro, that nothing of the kind was said by the applicant to them placed that evidence in doubt.
The applicant noted that Paul Mathieson (Mathieson) was called by the Crown. The applicant submitted that in the light of his conduct as a witness, there could be no doubt that he was motivated to damage the applicant's interests at his trial.
The applicant noted that Mathieson gave evidence that he spoke to him on 5 February 2009 and the applicant referred to having been conned by the deceased. Mathieson gave evidence that later the same day he spoke to the deceased who claimed he was going to expose the applicant.
The applicant accepted that on 15 May 2009, Mathieson travelled to New Zealand for a meeting with Tim Alford (Alford), Andrew Howard and him. The applicant agreed that at such time as Mathieson arrived at the meeting, he (the applicant) was having breakfast and sometime later Howard and Alford arrived and the four men had lunch.
The applicant noted that Mathieson's evidence was that in the course of the meeting, the applicant said: "He [the deceased] won't be a problem for much longer. It doesn't matter if he goes to gaol for the firebombing charge. Either way, he won't be a problem for much longer. Can't say too much about it, but he won't be a problem and I'll fix him up."

[65]

Factual matters which the applicant submitted gave rise to a doubt as to his guilt in respect of the murder

The applicant summarised his submissions in relation to Ground of Appeal 1. He submitted that the evidence established a reasonable possibility that: 1. the genesis of the plot to kill the deceased was conceived at the time of the Safetli conversation in February 2009; 2. this was at such time as the deceased had recently been charged with arson, the facts of which included his having firebombed the Tilley premises; 3. The "Safetli conversation" took place at about this time; 4. Haissam Safetli had historically been engaged by Gattellari to participate in criminal activity which included Safetli having firebombed a Mercedes Benz motor vehicle owned by Gattellari for the purposes of a false insurance claim; 5. Gattellari engaged the Safetlis to surveil the deceased in February 2009; 6. the Safetlis reinforced that they were willing to murder the deceased whilst engaged by Gattellari to surveil him; 7. Gattellari encouraged and maintained the Safetlis when he was made aware of their unprompted enthusiasm to kill the deceased; 8. Gattellari paid the Safetlis some money in the early months of 2009; possibly $39,000 "from the books" (and not from any cash currency provided by the applicant); 9. Gattellari opportunistically introduced Haissam Safetli to Mason's son in law who was offered $50,000 to murder the deceased; 10. Gattellari asked Safetli to stop whatever it was he was doing in respect of the plan to murder the deceased at an unknown time. This was capable of explaining the period of time that elapsed between the Safetli conversation and the date of the murder; 11. Haissam Safetli's intent to murder the deceased crystallised a month or so before 3 September 2009 because he supposedly "needed the job". It was unclear if he was acting in his own interests, pursuant to a previous arrangement with Gattellari or was aware that Gattellari had offered Landini $50,000; 12. Haissam Safetli murdered the deceased without any resolution of the monies to be paid, a proposition Gattellari accepted in cross-examination; 13. Haissam Safetli, who had an unexplained preoccupation with murdering the deceased was behaving erratically at the time of the murder; 14. Gattellari spoke to the Safetli brothers "occasionally" in respect of the arrangements to kill the deceased; 15. the Safetli enterprise was neither funded, solicited or encouraged by the applicant; 16. Gattellari, subsequent to the murder, arranged various rewards for Safetli without the knowledge of the applicant and falsely claimed that the applicant had agreed to finance Safetli in the future. (The latter was a proposition Gattellari was bound to accept in cross examination in light of electronic and other surveillance evidence available at this time); 17. it was Gattellari whom the evidence established held out an expectation that the death of the deceased was of some forensic benefit to the applicant whilst the applicant maintained and funded legal avenues throughout the currency of the alleged enterprise; and 18. Gattellari possessed an entrenched dishonesty; a preoccupation with personal advantage arising from the applicant's wealth and a futile manipulation of criminals for his own financial advantage.

[66]

Ground 2 - The jury verdict in respect of Count 2 is unreasonable

The applicant noted that the first reference in Gattellari's evidence to an approach to Mrs McGurk as an objective of the single joint criminal enterprise was in response to a question from the Crown Prosecutor by reference to the applicant's solicitation of the murder: "Was there any mention of Mrs McGurk at that meeting or the one a few days earlier?"
Gattellari responded: "I think that Mrs McGurk came up some time later."
The applicant noted that Gattellari could not recall when the applicant first mentioned an approach to the deceased's wife but it was something in the order of "days or weeks" after soliciting the murder. He did not give evidence as to where this conversation took place but the applicant "mentioned that if and when we do find someone to kill Mr McGurk, he also wanted his wife paid a visit to convince her that it was time that she paid all the debts back." (T351.1)
The applicant submitted that in response to a further question from the Crown Prosecutor Gattellari agreed with the proposition that the applicant had asked him to "visit" the deceased's wife before he had the first meeting with the Safetlis at which their preparedness to murder the deceased was discussed (T354.22).
The applicant submitted that by this point in Gattellari's examination in chief, he had asserted two contradictory propositions, namely that the first mention of the visit to the deceased's wife was possibly weeks after the applicant's solicitation (and hence on the Gattellari chronology after the Safetli meetings) and that it was before the first Safetli meeting. The applicant noted that on at least on one of Gattellari's versions of events "the visit" to the deceased's wife was put to the Safetlis at the very first meeting (T354.22).
The applicant submitted that the supposedly dual objective of the joint enterprise was not supported by the evidence of Kaminic who testified that the first he heard of any plan to intimidate the deceased's wife was at the end of 2009, or at the beginning of 2010 (T1345.15).
The applicant submitted that notwithstanding the importance attaching to the "single joint enterprise" in how the Crown sought to prove its case and the significance of the unchallenged evidence of Kaminic establishing that there was no mention of any "visit" to Mrs McGurk before the murder, the Crown chose not to call either of the Safetlis at trial. The applicant submitted that speculation as to what one or other of them might have said about the veracity of any or all of these inconsistent versions gave rise to an obvious doubt.

[67]

Crown response to asserted contradictions in Gattellari's evidence

The Crown submitted that Gattellari did not give contradictory evidence on the timing of the request by the applicant to approach the deceased's wife. Gattellari's evidence as to the timing of the applicant's initial request for Mrs McGurk to be paid a visit was that it was "days or weeks" after the applicant's initial solicitation of the murder (T351.1). The Crown noted that the applicant said that if and when someone was found to kill the deceased, the applicant also wanted his wife "paid a visit to convince her that it was time that she paid all the debts back" (T351).
The Crown noted that Gattellari's evidence about the solicitation of the murder had been dealt with above. The Crown submitted that there was an initial conversation when the request to murder was made and then a second conversation with Gattellari when the request was confirmed. When asked how soon after the first conversation that second conversation occurred, Gattellari answered "I don't know the exact timeline, but it might have been two or three days later" (T350.21).
The Crown noted that Gattellari's evidence was that the timing of the initial meeting with the Safetlis to discuss the murder, which was arranged by Kaminic, was "maybe a week or so, a few days after that second discussion with Mr Medich in his office" (T352.1).
Gattellari clarified that the applicant had raised the matter of the intimidation of Mrs McGurk before he had the initial meeting with the Safetlis to ask them if they were prepared to carry out the murder (T354.22). Gattellari said that he told the Safetlis at their first meeting "that apart from the murder, there was a second phase to be carried out, that the guy who wanted this done also wants the man's wife intimidated to pay back certain moneys that were loaned" (T354).
The Crown submitted that the applicant's argument (AWS [184]) appeared to be that the reference to "days or weeks" meant "possibly weeks" and that "possibly weeks" was "contradictory" to the description of the first Safetli meeting occurring "maybe a week or so, a few days" after that second conversation. The Crown submitted that that argument should be rejected. The Crown submitted that while Gattellari's description of the timing of each conversation was not precise, it was qualified and there was no inconsistency between "days or weeks" and "maybe a week or so, a few days".

[68]

Further submissions by applicant as to significance of intercepts

The applicant submitted that although Gattellari claimed that intercepts (between 31 July and 2 August 2010) were evidence of conversations between himself and Kaminic arranging for Kaminic to pay the Safetli brothers $50,000 in cash currency as a first instalment for the intimidation, Kaminic gave no evidence of providing either of the Safetlis with cash before the intimidation. Kaminic testified that he gave Safetli $50,000 after the intimidation out of which Haissam gave him $10,000.
The applicant noted that it was the Crown case that he and Gattellari had made plans to leave the country on 6 August 2010 so as to be absent at such time as "the visit" took place. The applicant accepted that the Crown had adduced evidence of police intelligence to this effect from Detective Howe.
The applicant noted that in his commentary as to the meaning of certain calls Gattellari claimed that an intercept of 4 August 2010 at 11:24am was a discussion between himself and the applicant about creating an alibi for the intimidation (which earlier calls had established was to take place between 5 and 9 August 2010).
The applicant submitted that in fact the content of the 4 August 2010 call between the applicant and Gattellari did not establish that proposition. The applicant submitted that a proper reading of what occurred indicated that Gattellari was discouraging the applicant from being out of Australia between 5 and 9 August 2010. The applicant noted that it was Gattellari's suggestion that the pair leave the following Wednesday (11 August 2010) and return at an unspecified time.
The applicant submitted that given the significance that the Crown placed upon this 4 August 2010 call, as independent evidence of the applicant's guilt, it was necessary to set out the relevant portion of the intercept, including what was said to constitute an assertion on the part of the applicant as to his knowledge of a prospective alibi and hence the offence: "LG: I think the only ah ... the only logical or possible thing to do to satisfy all parties, Monday is now chock-a-block full. The only thing available is direct Business Class - I think, stone motherless crazy to book that. RM: Oh fuck you know. LG: Now, why don't we just fuckin' leave on Wed ... on Wednesday next week to go there and then take our time to come back? RM: Leave Wednesday next week? LG: That's right and take our fucking time to come back, because this is too ... this is ... the only other way we can do it is to come back on fuckin' Sunday now, what's the point? We ... we're goin' there just for the meeting and comin' back. If you're able to do that I'll do that as well. RM: Well that means that I miss out on Winter King the following Saturday in that big race. LG: Oh. [LAUGHS] Well I dunno, what do you wanna do? RM: Oh fuck (ind) LG: Monday's chock ... Monday's full mate. Monday's full. RM: (ind) you know why I knew this'd happen. Because Kim shoulda booked it the other day ya know? LG: Yeah but we ... but we couldn't ... we couldn't Ron, ya know? 'Cause we're not taking a holiday trip here ... the trip is based on certain things that need to happen at certain times. RM: Yeah. LG: I, I can't just fuckin' decide to go on the ... on the drop of a hat. RM: Yeah I understand that. LG: Unless other ... unless other matters are fixed." (Exhibit T2, p203-204)

[69]

No inconsistency in approach to Costa and payment of $50,000 deposit to Safetli for intimidation

Kaminic's evidence was that Gattellari asked him to go and find someone to visit Kimberley McGurk "because they were at court and she was refusing to pay", which he understood to be her refusal to pay the applicant in the context of their legal proceedings. Kaminic said that as a result of that request, he contacted Daniel Costa and asked him to come to Gattellari's house. Kaminic thought this was "roughly three to four months after the murder".
The evidence from Costa placed the meeting at Gattellari's house on 6 February 2010 (T1567). The applicant pointed out that Gattellari did not give evidence of any specific conversation with the applicant which gave rise to this approach, however, Gattellari's evidence was that before the receipt of the Clayton Utz bill, intimidation was mentioned by the applicant "a couple of times" (T414). Importantly, as already discussed above, the terms in which the approach was conveyed to Costa by Gattellari (as explained by Costa in evidence) supported Gattellari's evidence that the message was to be delivered on behalf of the applicant.
Gattellari also explained in evidence that the approach was made to Costa rather than Safetli because at that stage Safetli was becoming "a little bit erratic". The Crown submitted that the applicant's submission (AWS [193]) overlooked that evidence.
The Crown noted that (AWS [198]), the applicant relied upon Kaminic's lack of any precise recollection about paying the first $50,000 to the Safetlis before the intimidation as being inconsistent with Gattellari's evidence of conversations between himself and Kaminic arranging for Kaminic to pay $50,000 as a first instalment for that offence. However, Kaminic's evidence was that he was aware that the Safetlis were paid $50,000 before the intimidation took place.
After giving evidence that Gattellari gave him $50,000 to give to Haissam Safetli after the trip to China, which Kaminic then provided to Safetli, receiving $10,000 out of that amount back from Safetli, the Crown Prosecutor asked the following questions (T1256): "Q. You told us earlier that Haissam Safetli had requested $100,000 to deliver the message to Mrs McGurk? A. INTERPRETER: Yes. Q. Do you know whether he was paid the other $50,000? A. INTERPRETER: Yes, before they went to China, but whether I was there or not, yeah, that 50 was the other part. Q. Were you present when that was given to Mr Safetli? A. INTERPRETER: First one I can't remember, but listening to the story, I know he received 50, but I can't remember whether I was with them or just heard the story."

[70]

Telephone call on 4 August 2010

The Crown submitted that a particular intercepted conversation between Gattellari and the applicant, extracted at AWS [202], was said by the applicant to be of dubious probative value in proving his guilt in respect of the intimidation count. The applicant contended that this was because in one part of a call (on 4 August 2010) Gattellari suggested to the applicant that they could leave the following week (on 11 August 2010). The applicant submitted that this raised a doubt that the purpose of the trip was connected to the intimidation.
The Crown submitted that the particular extract cannot be read in isolation and must be considered in the context of the other evidence relating to the applicant's trip to China during the period in which the intimidation offence was committed, including the sequence of interconnected telephone calls. The relevant intercepted calls have already been addressed in detail above when setting out Gattellari's version of the events after the murder.
The Crown submitted that Gattellari was not asked any questions about the relevant trip to China. Given that Gattellari and Kaminic were in fact responsible for arranging the intimidation, which occurred on 8 August 2010, while Gattellari and the applicant were in China, the Crown submitted that there can be no doubt that the conversations related to precisely that topic. The Crown submitted that when the intercepts are read in their full context, it is clear that the applicant was under no misunderstanding about the true purpose of the trip.
The Crown submitted that the applicant's argument in relation to the one call of 4 August 2010, is flawed and misconstrued and took the particular evidence out of context. It was not borne out by a reading of the call transcripts as a whole. Further, it incorrectly assumed that the timing of the intimidation taking place was fixed prior to the call in which Gattellari raised the possibility of leaving the following week, which clearly it was not.
The Crown submitted that the applicant's suggestion at AWS [205] that other intercepted calls "establish the likelihood that Gattellari overheard Howard and the applicant referring to a 'message' and Gattellari organised 'the visit' to the deceased's wife as some kind of 'favour' for the applicant with the misguided objective of trying to facilitate a resolution between the parties" is a proposition constructed entirely for the first time for the purposes of this appeal which was never put to Gattellari at trial and is not supported by the evidence. Put at its highest, it involves nothing more than speculation.

[71]

Alleged absence of support from Matthew Crockett

The Crown noted that at AWS [218], the applicant contended that Gattellari's evidence of his participation in the arrangements to intimidate the deceased's wife was unsupported by other evidence, in particular that of Matthew Crockett. The Crown noted that the applicant submitted that Matthew Crockett "gave no evidence of seeing a bag or asking to see a bag with $100,000 cash in it, nor of an occasion when he drove Gattellari to the appellant's office". Gattellari's evidence was that on 30 July 2010, Crockett drove him to the office in Leichhardt where the appellant gave him $100,000, which he later showed to Crockett.
The Crown noted that Crockett's evidence was to the effect that throughout 2010, he drove Gattellari around and that during this time he saw Gattellari on several occasions with large sums of cash around $50,000. He said that he would carry this cash in a brown bag or a "bum bag". The Crown submitted that this evidence of Crockett was generally supportive of Gattellari's account.

[72]

Gattellari's evidence as to the total fee payable for the two offences

The applicant submitted (AWS [219]) that Gattellari "changed his evidence" as to the fee ultimately paid for the single joint criminal enterprise. In response, the Crown submitted that Gattellari's accuracy needed to be assessed in the light of what he said in re-examination. This was to the effect that he had told police (at the time of making his statement on 25 November 2011) that the figure of $600,000 included "other matters" (apart from the murder and intimidation) for "other jobs" which the applicant wanted done (T1164). In this sense, there was no real change to his evidence.

[73]

Alleged subsequent conspiracy on behalf of Gattellari

Part of the cross-examination of Gattellari, and the defence case, was directed at an issue arising out of a police investigation, (Strike Force Smedley) which was referred to in the trial as the "Smedley investigation". The central allegation arising out of that investigation was that Gattellari had, from prison, orchestrated an approach to persons associated with the applicant with an offer to refuse to give evidence in exchange for the payment of a large sum of money. An initial approach was made through Robert McCarthy with the assistance of Gattellari's brother and when that approach failed (due to the appearance of an undercover officer involved in the Smedley investigation) a second approach was orchestrated through a fellow prisoner, Shayne Hatfield, involving Roger Rogerson and Glen McNamara. As a result of that investigation, Gattellari (along with a number of other persons) were charged with conspiracy to defraud the applicant.
At trial, Gattellari was granted a certificate pursuant to s 128 of the Evidence Act for his answers in relation to this topic. Gattellari maintained that the approach to the applicant was with the knowledge and permission of the police involved in the murder investigation and that essentially he set out to trap the applicant into responding to the approach. Gattellari believed this would confirm the applicant's guilt in relation to the murder charge and thereby bring the matter to a conclusion and allow Gattellari to improve his conditions in custody away from the high security environment required due to his status as a Crown witness.
Although Gattellari had disclosed to police some information about potential contact with persons connected with the applicant, it was clear that Gattellari had not been truthful to police in originally suggesting that the initial approach had come from persons connected to the applicant, when it had in fact been orchestrated by himself.
The applicant's contention was that the evidence on the topic demonstrated that at a fundamental level, Gattellari was a dishonest witness, that he had lied about a number of police officers in relation to the Smedley investigation, that the jury would be satisfied that he was lying about other things and he was not an honest and reliable man. In response, while the Crown accepted that this was a relevant consideration when assessing Gattellari's credibility and reliability, it was open to the jury to treat Gattellari's actions as premised on the applicant's guilt and not his innocence. That was particularly obvious from the explanation which had been given by Gattellari to McCarthy (about which McCarthy gave evidence at T2042) that the actions of Gattellari stemmed from bitterness that he had arranged the murder on the applicant's behalf and the applicant had turned his back on him.

[74]

Applicant's summary of conclusions in relation to unreasonable verdict grounds

The applicant submitted that as a consequence of the contended errors at trial (Grounds 3 - 7), there had been a distortion in the evidentiary picture which undermined the significance in this appeal of any advantage the jury possessed in assessing the credibility of the critical witness. The applicant submitted that such an advantage in assessing Gattellari's credibility could not be quarantined from the Crown's improper submission contending that there was objective and other support for the applicant having provided hundreds of thousands of dollars in cash for the enterprise (Ground 3).
The applicant submitted that less weight was to be given to an "advantage" where the jury has been misdirected (Grounds 6 and 7).
The applicant submitted that in conducting an independent assessment of the admissible evidence, this Court having been properly instructed, had an advantage in that respect over the jury. The applicant submitted that the proper evidential picture was one that contradicted the central Crown theses about the applicant's involvement in the critical events, i.e. the solicitation and the provision of the enterprise money.
The applicant submitted that without any corroboration, Gattellari simply was not a credible witness and the Crown case relying wholly (or even primarily) on his uncorroborated evidence was problematic to the point that it could not have satisfied a reasonable jury properly instructed of the applicant's guilt beyond reasonable doubt.
The applicant submitted that Gattellari's irrational and transparent efforts at the trial to defend his attempted extortion of money from the applicant, after having been sentenced for murder, provided some insight into his capacity for deceit and a peculiar tendency to shift blame to others by layers of unsupportable and at time unintelligible and irrational accusations.
The applicant submitted that given the characters involved in the offences and their violent disposition to murder, there was a reasonable possibility that these offences were the product of a constellation of unhinged minds and aberrant perceptions of advantage.
The applicant submitted that in these circumstances, and in accordance with principle, the Court would not engage upon a process of reasoning that the failure by the applicant's senior counsel to put a motive to Gattellari in cross-examination, was a basis for drawing an inference that in fact Gattellari was not lying about the joint criminal enterprise.

[75]

Crown's affirmative case on Grounds 1 and 2

Apart from responding to the applicant's submissions directed at purported weaknesses and inconsistencies in the Crown case, the Crown put forward a strong positive case to establish the applicant's position as the originator and financier of the single joint criminal enterprise to murder the deceased and intimidate his wife.
The start point was a brief review of matters not in dispute.

[76]

Matters not in dispute

There was no doubt that the deceased was murdered at about 6:25pm on 3 September 2009. As the deceased got out of his car, he was struck by a bullet discharged from a modified firearm in Haissam Safetli's possession. The agreed cause of death was a gunshot wound to the head. Safetli and Estephan each admitted their involvement in the murder and pleaded guilty to charges arising from it. Each had admitted in their respective sentence proceedings that they were paid money for their participation in the murder, although the amounts they were paid were not nominated in the agreed facts in the applicant's trial (Exhibit F, para 8).
There was no doubt about Gattellari's involvement in the murder. He had pleaded guilty to the murder of the deceased on the basis of being an accessory before the fact. There was never any challenge to his involvement and in particular, there was never any challenge to the fact that it was Gattellari who arranged the murder and it was Gattellari who made the payments (either himself directly or through Kaminic) to Safetli for carrying out the murder.
There was also no doubt about the circumstances of the intimidation, which occurred on the evening of 8 August 2020, a little over 11 months after the murder. Mrs McGurk was at home with her four children. She was in the kitchen washing up when she heard a "rattle" at the back door. She had been forewarned by police of what was about to occur. She went to the door and opened it to find herself confronted by a person whom she described as a "pretty foreboding looking man" standing in the shadows, who said to her: "Just here to pass a message to you that's all. Don't be a conman like your husband. You know what you have to do. You know what you have to do, you know what I'm talking about." Mrs McGurk replied "No I don't". The man said: "Don't be a conman, pay your husband's debt, do you understand ... You know what I'm talking about". (This was recorded on a listening device which became Exhibit BE.)
The agreed facts recorded that Haissam Safetli had pleaded guilty and been sentenced for the intimidation offence. There was also evidence about the police operation relating to the intimidation offence, including that a person (referred to as "Witness A") had provided information to police that Haissam Safetli had approached him about passing on a message to Mrs McGurk. A police operation was authorised so that Witness A could be involved in the passing on of the message.

[77]

Evidence of the applicant's motive

Central to the Crown case was the strong evidence of motive on the part of the applicant and the corresponding lack of any independent motive on the part of Gattellari or anyone else.
The Crown case was that the applicant's motive arose from a deep-seated hatred that he had developed for the deceased, which had its origins in the deterioration of their personal and business relationship, the disputes between them which followed and the significant financial cost to the applicant of the associated litigation. The Crown submitted that by early 2009, there was outright hostility and complete enmity between the applicant and the deceased. The Crown submitted that many aspects of the nature and extent of the association between the applicant and the deceased were not in dispute at the trial and were the subject of agreed facts (Exhibit G and Exhibit H).
The various uncontested business dealings between the applicant and the deceased, and the disputes and litigation which followed, formed an important part of the backdrop to the deceased's murder, as well as the subsequent intimidation of the deceased's wife.
In oral submissions on the appeal, the Crown summarised those business dealings and placed them in context as part of the chronology provided by the Crown at the trial (MFI 116, AB 1119). The Crown's purpose was to identify significant events within that timeline to show that there was compelling evidence outside that of Gattellari which already told much by itself of the motivation of the applicant in originating the single joint criminal enterprise. The Crown warned against the significance of those matters being lost simply because most of them were agreed or not in dispute, or if there was an undue focus on Gattellari's evidence in isolation.
The Crown took at its starting point the business dealings between the applicant and the deceased. Rather than repeat Exhibit G, which was a lengthy statement of the agreed facts, the Crown sought to summarise the effect of that exhibit in order to explain the motivation behind the applicant's conduct. The Crown proposed to do so without referring specifically to Gattellari's evidence, except where there was no dispute about it. It was then the Crown's intention in the appeal to superimpose the evidence of Gattellari on those matters otherwise established.

[78]

Lack of independent motive on the part of Gattellari

Gattellari gave evidence that he did not know the deceased very well and did not consider him a business associate or a friend. His opinion of the deceased was that he was "a bit of a conman" (T336). The Crown led evidence from Gattellari as to the occasions which he recalled when he had met with, or had a dealing with, the deceased. (See also [414]-[416] hereof.)
These occasions were limited to the following: 1. an occasion when the deceased attended at the Boomerang Funeral Fund unannounced with a team to conduct an audit at the request of the applicant (T337-338). One of the accountants that was present, Roy Jolly, gave evidence that the interactions between the deceased and Gattellari was friendly and calm and without hostility (T1841-1843); 2. an occasion when Gattellari had been contacted by the deceased who asked to meet with him at a coffee shop near the deceased's office. The deceased asked Gattellari whether he could "sort out" a witness in a court case and Gattellari declined saying he did not do "that sort of thing" (T342-343); 3. an occasion at a luncheon at Tuscany's restaurant where other persons including the applicant, Mr Shipley, Mr Neville Shead, and Mr Denis Wilson were present and where the deceased made a comment about the electrical company venture which annoyed Gattellari (T339). This occurred proximate to the beginning of the electrical venture in around May 2008; and 4. after the luncheon, Gattellari contacted the deceased and asked if he could talk to him. The deceased invited Gattellari to see him at his office, which he did a few days later with Kaminic (T340). While seated in the reception area with Kaminic, Gattellari told the deceased that he would appreciate it if he kept his comments about his (Gattellari's] affairs to himself. The deceased smiled and said, "Okay, mate, that would be fine" and "Is there anything else?". Gattellari replied, "No, that's about it, Michael, I think that we understand each other". They shook hands and Gattellari and Kaminic left (T341). There was evidence that this meeting occurred on 13 May 2008.
The Crown submitted that while Gattellari could not recall the precise timing of those meetings, other records and evidence independent of Gattellari showed that they took place in the period 30 November 2007 to May 2008 (Detective Howe gave evidence that the last telephone contact between Gattellari and the deceased was 26 May 2008 (T2496; T2644).) At the time of those meetings Gattellari was aware that the deceased and the applicant had some business dealings but Gattellari was not aware of the specific details of those dealings (T344).

[79]

Grounds 1 and 2

Having reviewed the record of the trial, I agree with the Chief Judge that neither verdict is unreasonable or unable to be supported having regard to the evidence. The evidence of Gattellari was riddled with problems and the prosecution case depended on it to a very large extent. However, it was not the only evidence capable of implicating the applicant in the murder of Michael McGurk. There was powerful evidence of the applicant's motive, and some of the conversations with other witnesses suggested he was involved in the killing of McGurk and the intimidation of his widow. There was also evidence from Kaminic capable of providing support for some aspects of Gattellari's evidence while contradicting other parts in important respects. The jury was given a warning about the potential unreliability of Gattellari's evidence. It was open to the jury, having given heed to that warning and scrutinizing the evidence with great care, to reach verdicts of guilty. In reaching that conclusion, and in employing the expression "open to the jury", I have applied well-established principles established by the High Court in cases such M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394; 376 ALR 478. I have taken into account the failure of the prosecution to call the Safetlis and approached the evaluation of witnesses such as Gattellari and Kaminic from a position of considerable scepticism.

[80]

Ground 3

I agree that ground 3 ought not to be upheld. There was a dispute between the parties as to whether r 4 of the Criminal Appeal Rules (NSW) applied to this ground. No objection was taken to the Prosecutor's address and there was no application for any direction about it. Whether or not r 4 applies, the fact that no complaint was made at the trial is relevant to the disposition of this ground. It is unnecessary to express a concluded view on the issue of whether r 4 applies in circumstances where a prosecutor's address is said to give rise to unfairness, noting the seemingly conflicting opinions expressed by members of this Court in past cases. [1] I am inclined to agree with the proposition that "a failure by counsel to object to perceived inaccuracies in the [Prosecutor's] address or to its allegedly extravagant or intemperate tone does not fit easily within the description of a direction, omission to direct, or decision as to the admission or rejection of evidence." [2]
However, whatever be the correct application of r 4 to this ground, there was no miscarriage of justice arising from the relevant parts of the Prosecutor's address.
There was no issue between the parties at the trial that Gattellari had access to large quantities of cash through a group of private companies referred to as the "electrical companies" (including a company known as Rivercorp). That fact was consistent with the case of both parties at the trial. The applicant's case was that Gattellari had access to cash with which to pay the Safetlis. The dispute was whether such funds were provided by the applicant. The related issue was what happened to the cash money that Gattellari claimed he received from the applicant to fund the murder. The Prosecutor did not misstate the effect of the evidence in their address to the jury. While some parts of the address, considered at this distance from the atmosphere of the trial and without the nuance of the spoken word, may have had a capacity to overstate the effect of the evidence of Messrs Collis and Shipley, there was no submission that their evidence directly corroborated Gattellari's version. Nor was it suggested that the evidence supported an inference that the cash allegedly provided by the applicant was actually deposited into the bank accounts of the electrical companies. Further, the report shown to Mr Collis demonstrated that there were large sums of (cash) money available to Gattellari. There was a selective and limited tender of the report.

[81]

Ground 4

I have concluded that there was a miscarriage of justice as a result of the matters raised by ground 4. The evidence elicited in re-examination was not admissible. It was inadmissible both as hearsay and as opinion evidence. [3] There is no occasion to apply r 4 arising from the absence of immediate objection because of the failure of the prosecution to put the applicant and the Court on notice that it was to be adduced, and because an application to discharge the jury was made almost immediately after the evidence was adduced. The wrongful admission of the evidence constituted a miscarriage of justice.

[82]

Ground 5

I would also uphold ground 5. The Prosecutor's final flourish in their cross-examination of Peter Medich created unfairness. The conflict between the evidence of Peter Medich and Loren Gattellari did not involve a contest as to whether Lucky Gattellari would implicate the applicant in the murder honestly or dishonestly. In those circumstances, for the Prosecutor to put to Peter Medich that he did not report the extortion attempt to police (to put Loren Gattellari's approach in pejorative terms), suggested that Peter Medich knew or suspected that his father was guilty and that Peter Medich was part of an attempt to cover up his father's involvement. There was no evidence upon which those implications could properly be based. In spite of the absence of objection by Senior Counsel for the applicant at trial, I would not refuse leave to entertain this ground under rule 4 of the Criminal Appeal Rules.

[83]

Ground 6

I agree with Hoeben CJ at CL that ground 6 must be rejected. The relevance of the evidence of the relationship between the applicant and Gattellari was conceded, correctly, at the trial. The trial Judge excluded the most prejudicial aspect of the evidence - that is, that Gattellari intimidated those from whom he collected debts on behalf of the applicant. The evidence that Gattellari collected debts and arranged surveillance of the applicant's wife, on the applicant's behalf, had a relatively high degree of probative value in explaining the nature of the relationship between the two men. That relationship was, in turn, relevant to the allegation that the applicant had sufficient trust in Gattellari to engage him to arrange the murder of McGurk. Contrary to the applicant's submissions, any risk that the evidence may be misused, and in particular that the jury might use it to engage in tendency or bad character reasoning, was overcome by the directions provided to the jury by the trial Judge. The error in the summing up concerning the timing of the surveillance of the applicant's wife was a matter of little moment in the overall context of the trial. The Prosecutor identified correctly the timing of that surveillance in their address to the jury and the jury requested and received a copy of the transcript.
I should record that I would not refuse leave under r 4 on the basis that the objection in this Court was formulated differently to that taken in the District Court. I would grant leave to rely on the ground given that objection was taken to the evidence. However, the evidence was admissible and any danger of unfair prejudice or misuse of the evidence was cured by the directions provided by the trial Judge.

[84]

Ground 7

I would uphold ground 7 on the basis that the jury should have been directed not to reason to guilt on the murder charge by way of tendency reasoning arising from the evidence and any findings in relation to count two. The failure to seek such a direction must have been an oversight on the part of counsel appearing at the trial and there was no tactical reason not to seek such a direction. I would not invoke rule 4 to prevent the applicant from relying on this ground of appeal.

[85]

The proviso

The respondent did not, in terms, invoke the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW). However, as I will explain, it is appropriate to consider its application in the circumstances. Having considered the errors in the context of the whole record of the trial, I am unable to conclude that no substantial miscarriage of justice actually occurred.

[86]

The reasons that follow and my conclusion as to the outcome of the appeal

I will say no more about the grounds I would reject (grounds 1, 2, 3 and 6). I agree, generally, with the respondent's submissions in relation to those grounds and Hoeben CJ at CL has reproduced those arguments in his judgment. The reasons that follow concern the grounds I would uphold (grounds 4, 5 and 7). They also explain that, on a review of the whole of the record at the trial, including the verdicts, and consideration of the nature of the errors that occurred in the trial proceedings, I am unable to conclude that no substantial miscarriage of justice actually occurred in this case.
I would allow the appeal against conviction and order a re-trial.

[87]

(a) The trial Judge erred in failing to discharge the jury after the admission of inadmissible assumptions on the part of Senad Kaminic elicited by the Crown prosecutor in re-examination giving rise to miscarriage of a kind requiring this Court to set aside the verdicts.

[88]

(b) A miscarriage of justice has been occasioned by the admission of evidence of assumptions of Senad Kaminic.

Ground 4 concerns questions asked in re-examination of the witness Senad Kaminic. As the summary of evidence provided by Hoeben CJ at CL at [216] - [219] shows, Kaminic gave some evidence capable of supporting aspects of the prosecution case. However, his testimony was also relied on by the applicant because parts of his evidence contradicted important aspects of the narrative provided by Gattellari.
The impugned evidence adduced in re-examination concerned a conversation between Gattellari and Haissam Safetli. The conversation occurred in February 2009, prior to the point in time at which the prosecution alleged that the applicant was involved in a joint criminal enterprise to kill the deceased. Gattellari said he could not recall the meeting and denied that the conversation occurred at all. He said it "never happened" and was "nonsense". Neither Bassam Safetli nor Haissam Safetli gave evidence. There was no suggestion that the applicant was present. He was in no position to challenge the terms of the conversation or to provide any alternative version of events.
Trial counsel for the applicant did not object to the evidence elicited in re-examination as the questions were asked. However, immediately after the re-examination concluded, he made an application for a discharge of the jury. That application was refused. In spite of the terms of ground 4(a), the issue is not whether the trial Judge erred in the judgment declining the discharge application, although the applicant referred to a number of issues arising from that judgment. The first question is whether there was a miscarriage of justice pursuant to s 6(1) of the Criminal Appeal Act. I have concluded that there was.
The conversation was raised in the cross-examination of Gattellari and he denied the substance of the conversation: "TERRACINI Q. Mr Gattellari, you knew Bassam Safetli to be the brother of Hais Safetli? A. Yes, I did. Q. Did you have a conversation with both the Safetlis - that is, Haissam and Bassam, in the court complex across the road in the first week of February 2009? A. In the court complex? Q. Either in the coffee shop outside or in the court complex itself? A. Not that I'm aware of, no. Q. Did Hais show you an article in a newspaper in the first week of February 2009? A. I don't believe so. Q. And say to you, 'This man is causing you a lot of trouble'? A. Can't recall it. Q. Beg your pardon? A. I can't recall that happening. Q. And did you say, 'What do you mean?' A. I can't recall the conversation happening. Q. Did Hais Safetli say, 'He's causing you a lot of problems. You'll have to kill this guy'? Did he say that to you? A. Well, I can't recall the conversation at all, so I don't know what he said to me. Q. Just have a look at this document, if you would. You will see poking out on the top a certificate. Can you just open the newspaper at that point. A. Yes. Q. Do you recognise a photograph of Mr McGurk? A. I recognise the photograph, yes. Q. Of Mr McGurk? A. Yes. Q. I suggest to you that in the first week of February 2009, Hais Safetli showed you that very photograph of the deceased? A. You may suggest what you like but it didn't happen. HIS HONOUR: When you say 'that very photograph', you mean that very photograph as it appeared in the paper? TERRACINI Q. As it appears in that authenticated copy of the Daily Telegraph of 2 February 2009. A. Never happened. Q. 3 February, is it? Can you just look at the top of the page? I don't have a duplicate original. A. February 3rd, yes. Q. I suggest to you that he showed you a copy of that photograph appearing in that newspaper. A. This is the first and only time I have seen this photograph in this newspaper. Q. I suggest to you that he pointed towards that photograph and said, 'He's causing you a lot of problems'? A. That is a nonsense. 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. Q. You have not heard Mr Kaminic give any evidence over the years about anything to do with this case, have you? A. I have not. Q. And you haven't read any statements compiled by him or signed by him to the police? A. No, I have not."

[89]

The Prosecutor exceeded the limits on re-examination

There was no suggestion in the evidence in chief that the "you" referred to in the conversation was the applicant. Nor was it suggested that "you" was used as a collective pronoun and related to Gattellari and the applicant. This was so, even though there was reference in the same conversation to Gattellari telling Kaminic that the Safetlis were to conduct surveillance on the applicant's behalf.
There was no cross-examination as to what was in Kaminic's mind when these things were said and no suggestion in cross-examination that Kaminic was in a position to give evidence of what Safetli intended to convey. In those circumstances, a significant part of the re-examination (the part that is italicised in the passage set out at [819]) fell outside the legitimate bounds of re-examination.
It was open to the Prosecutor to ask whether the word "you" had been emphasised in the manner apparently employed in the cross-examination. However, it was not open to ask to whom the witness understood Safetli to be referring when he said that McGurk was "causing you a lot of problems" (and, by extension, who "[had] to kill this guy"). Kaminic's understanding of what Haissam Safetli intended to convey did not arise out of the questions asked in cross-examination: s 39(a) of the Evidence Act 1995 (NSW). For example, it was not put to Kaminic in cross-examination that when Safetli said "you" he was directing the observation to Gattellari, or was referring to Gattellari, or that Kaminic "understood" it to be a reference to Gattellari. Nor was leave sought under s 39(b).
Accordingly, the evidence was not admissible in re-examination. Assuming the evidence was admissible (which, as will be seen, it was not), it should have been adduced in the course of evidence in chief when the witness gave evidence of the conversation. The cross-examination, while emphasising the word "you", did not invite evidence of Kaminic's opinion or understanding of what Safetli meant or to whom he was referring.

[90]

The evidence was not admissible

However, the problem was more fundamental than that. The evidence was not admissible.
The question - "[W]ho did you understand Safetli to be referring to when he said 'causing you a lot of problems'?" - called for Kaminic to provide his opinion of what was in Safetli's mind. While the question, on its face, was directed to Kaminic's "understanding", any answer required the witness to speculate as to what Safetli intended to convey by use of the word "you" when it was directed to Gattellari. Alternatively, it required Kaminic to provide evidence as to his own thinking process many years earlier in circumstances where such evidence had never previously been adduced, foreshadowed or disclosed. The follow-up question - asking "why" Kaminic was of this understanding - was an invitation for the witness to undertake a circumstantial reasoning process that was properly within the province of the jury.
The applicant submitted that the evidence was not admissible and said "the [Prosecution] sought to prove what the Safetlis understood to be the nature of the unresolved problem that the deceased posed, and to whom, by adducing erroneous and inadmissible assumptions of Kaminic yet chose not to call the Safetlis" (Applicant's Written Submissions ("AWS") at [296]). It was put that "Kaminic's recollection nearly ten years later (erroneous as it turned out) as to the state of legal affairs between the applicant and the deceased in February 2009 was not capable of, or admissible to prove, what possibly motivated the Safetlis in conveying what they did" (AWS at [297]). It was further submitted that "the [Prosecution] was prepared to conduct its case without calling the Safetlis on this issue and instead prove such an objective by inadmissible and unsubstantiated assumptions of Kaminic" (AWS at [305]).
The applicant also submitted (AWS at [309]): "In the reasons for judgment dismissing the application [to discharge the jury] the trial judge erroneously characterised the 'essence' of the application as premised upon the fact that the evidence was new at [11] and elicited in re-examination (at [12], [15]). Understood in this way the trial Judge determined that such 'complaint' was remedied by further cross-examination (at [15]). Defence counsel was rather making the point, correctly, that the hitherto undisclosed assumption was not admissible, prejudicial and went to the very heart of the defence case. The trial judge failed to take into account the articulated prejudice in refusing the application." (Footnotes omitted.)

[91]

Inadmissible opinion evidence

The question is properly categorised as an attempt to elicit Kaminic's opinion and is caught by the opinion rule in s 76 of the Evidence Act. That section provides that "evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed".
Section 78 provides an exception: 78 Exception: lay opinions The opinion rule does not apply to evidence of an opinion expressed by a person if-- (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
The evidence did not fit either of those criteria of admissibility. Kaminic could not "see, hear or otherwise perceive" what was in Safetli's mind: see Petch v R [2020] NSWCCA 133 at [84] - [87] and the cases discussed at [62] - [77] (Hamill J, Hoeben CJ at CL and Cavanagh J agreeing). Nor was the opinion necessary to obtain an adequate understanding of Kaminic's perception of the matter or event (that is, the terms of the conversation): see Petch v R at [84], [86] and [88].
The respondent submitted the evidence was admissible, relied on the decision of White J (as his Honour then was) in Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379, and said that his Honour's decision was cited with approval by the High Court in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36.
The circumstances in Connex Group v Butt were different. White J allowed evidence of a file note which provided the "gist" of a telephone conference between two people which was heard by the witness over speakerphone: at [2]. The file note included the witness's "impressions" of what the participants to the conversation conveyed. It did not provide direct speech and the file note indicated that the witness's handwritten notes (from which it was derived) did not "capture every word of the conversation": at [27]. The note was tendered as evidence of the conversation. There was an objection on the basis of relevance and hearsay but this developed so that the real issue became whether the file note contained inadmissible opinion evidence. White J took the view that earlier cases which gave s 78 "a relatively narrow operation" were wrong: see [23]-[24] and the references to R v Leung and Wong (1999) 47 NSWLR 405; [1999] NSWCCA 287 at 411 - 412, Australian Securities and Investments Commission v Vines [2003] NSWSC 1237 and Guide Dog Owners' and Friends' Association Inc v Guide Dog Association (NSW & ACT) (1998) 154 ALR 527 at 531.

[92]

Was the evidence admissible as an exception to the hearsay rule?

Section 66A of the Evidence Act provides an exception to the hearsay rule "if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind". The "person" referred to is the maker of the representation - that is, Safetli. A contemporaneous statement by Safetli as to his "intention, knowledge or state of mind" may have been admissible under s 66A. However, Kaminic's understanding of Safetli's "intention, knowledge or state of mind" was not admissible under this exception to the hearsay rule.
Further, s 66A falls within Division 2 of Part 3.2 of the Evidence Act and s 62 restricts the exception to first hand hearsay. Section 62 provides: 62 Restriction to "first-hand" hearsay (1) A reference in this Division (other than in subsection (2) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. (3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.
The evidence in question went to what Safetli meant by "you" when he said "this guy is causing you problems" and "you should kill this guy". Kaminic did not have personal knowledge of that fact. His evidence of what he thought Safetli meant was not based on things he saw, heard or otherwise perceived. The fact that the question was phrased in such a way that it appeared to inquire after Kaminic's understanding cannot obscure the fact that the true purpose of the inquiry was to establish to whom Safetli was referring when he used the word "you". There was no suggestion that Kaminic's understanding of the conversation was relevant in its own right.
The evidence was not first-hand hearsay and was not, in any event, admissible under s 66A as an exception to the hearsay rule. The respondent did not submit that it was.

[93]

The evidence was not an admission made with authority or admissible under the co-conspirator's rule

For completeness, there was no suggestion that the evidence may have been admissible under s 87 of the Evidence Act or the common law co-conspirators rule: see R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127, Higgins v R [2020] NSWCCA 149, Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22, Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39.
At the time of the conversation there was no relevant common purpose between Safetli and the applicant or Safetli and Gattellari. [6] The earliest the prosecution suggested the joint criminal enterprise commenced was March 2009. Accordingly, the representation was not "by the person [Safetli] in furtherance of a common purpose (whether lawful or not) that the person had with the party [the applicant] or one or more persons including the party [the applicant and Gattellari]": see s 87(1)(c) of the Evidence Act.

[94]

Rule 4

No objection was taken to these questions as they were asked. However, as soon as the re-examination concluded, Senior Counsel then appearing for the applicant made an application to discharge the jury. Asked whether any objection was taken to the question, Senior Counsel responded: "Well, I didn't know what was going to be happening. It has never been led in seven and a half years."
Senior Counsel said the evidence: "…has never appeared in any statement, any evidence. It was never led at the committal. It was never put to the first jury. [7] It was never led in chief and, plainly, there has been a conference between the DPP and/or the [Prosecutor] where this has obviously fallen from him, or been led from him in conference. It was never attempted to be led in chief and it is irreparable. It is a completely different case."
He complained about the absence of disclosure "that there was going to be an addendum to the [prosecution] case for the first time since this man has been charged".
The applicant submitted that r 4 of the Criminal Appeal Rules did not apply to ground 4. The respondent submitted that it applies to ground 4(b) because no objection was taken at the time the evidence was given. I accept the respondent's submission that rule 4 is engaged in relation to ground 4(b). However, the fact that objection was taken - in the form of the application for discharge of the jury - so shortly after the evidence was given is a strong factor militating in favour of the grant of leave under rule 4. It is also relevant that no notice was given to the applicant at trial that the evidence was to be elicited in re-examination. This was despite the fact that there had been a committal, an earlier trial and a conference during which, presumably, the Prosecutor became aware of, or asked about, Kaminic's opinion.
In some of the authorities, it has been held that to obtain leave under rule 4 the applicant must establish that "he or she has lost a real chance (or a chance fairly open) of being acquitted": see, for example, Picken v R; R v Picken [2007] NSWCCA 319 at [20]-[21] (Mason P, Hidden and Harrison JJ agreeing), ARS v R [2011] NSWCCA 266 at [148] (Bathurst CJ, James and Johnson JJ agreeing), Greenhalgh v R [2017] NSWCCA 94 at [47]-[48] (N Adams J) and Hogg v R (2019) 101 NSWLR 524; [2019] NSWCCA 323 at [138] (Wilson J). However, in Greenhalgh Basten JA (with whom Button J agreed) emphasised at [15] - [16] "the importance of not limiting the scope and operation of a discretionary power, particularly in relation to the fairness of a criminal trial": see his Honour's analysis of relevant considerations and cases from [7]-[21]. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Bathurst CJ (with whom Leeming JA, RA Hulme, Hamill and N Adams JJ agreed) said at [24]-[25]: "24. … Whilst I accept, as Basten JA has pointed out in Greenhalgh v R [2017] NSWCCA 94 at [14], that the exercise of the discretion to grant leave conferred by r 4 cannot be proscribed, the discretion in my opinion will be exercised in the applicant's favour where there has been a miscarriage of justice such that the appellant has lost a real chance of acquittal: see ARS v R [2011] NSWCCA 266 at [147]; Greenhalgh at [47]-[48] (N Adams J). 25. Further, as Basten JA observed in Greenhalgh at [14], if a necessary element of a fair trial according to law was overlooked, leave should generally be granted."

[95]

A miscarriage of justice?

There was a great deal of argument on the hearing of the appeal as to whether the matters raised under this ground constituted a "miscarriage of justice" for the purpose of s 6(1) of the Criminal Appeal Act. The respondent submitted that "the evidence of Kaminic's understanding of the conversation does not have the significance contended for by the applicant" and "certainly did not occasion a miscarriage of justice" (RWS at [96]). The submission that there was no miscarriage of justice relied on a number of matters, including: 1. The applicant was given an opportunity to cross-examine further after the re-examination. 2. The view of the trial Judge that the evidence was of no particular significance. 3. The evidence did not say anything of the applicant's involvement in a plot to kill McGurk and the conversation pre-dated the time when, on Gattellari's account, the applicant was involved in a joint criminal enterprise to murder the deceased. 4. It remained open to the applicant to rely on the evidence as supporting the notion that the Safetlis raised with Gattellari the killing of McGurk at a time when the applicant had not asked Gattellari to kill anybody. 5. The Prosecutor's closing address did not use the evidence to suggest there was any existing joint criminal enterprise to kill McGurk.
The applicant contended to the contrary, submitting that the evidence created incurable prejudice because it obscured "a major difficulty in [the Prosecution] case which was the possibility that the genesis of the plot to kill the deceased emanated from the Safetlis in circumstances which did not implicate the applicant" (AWS at [331]). It was submitted that the additional cross-examination provided no remedy to the wrongful admission of evidence and that the Prosecutor's address confirmed that the additional cross-examination aggravated the prejudice. The relevant part of the Prosecutor's address was as follows: "It was put to him, you'll remember, members of the jury, it was put to Mr Kaminic that this was the first time in this trial he'd given evidence as to who he believed Safetli was referring to and you'll recall Mr Kaminic's evidence that he had never been asked by anyone who he believed Safetli was referring to when he said, 'This man is causing you a lot of problems,' and we certainly know that McGurk was causing the accused a lot of problems."
There was a spirited debate as to the extent to which these submissions constituted a change in the prosecution case, extended the temporal parameters of the applicant's involvement in the joint criminal enterprise, or otherwise obscured the prosecution case that the applicant was not involved in the plan to murder McGurk until, at the earliest, March 2009.

[96]

Ground 5: A miscarriage of justice resulted from the Crown Prosecutor's cross-examination of Peter Medich

Ground 5 concerns questions asked by the Prosecutor in cross-examination of the applicant's son, Peter Medich.
Gattellari's son, Loren Gattellari, was called in the prosecution case. He gave evidence of a conversation with Peter Medich that occurred before Gattellari commenced fully to co-operate with police. A demand was made for the applicant to fund Gattellari's legal expenses estimated to be in the order of $1 million. Loren told Peter Medich that unless the applicant assisted with the payment of his father's legal fees, Gattellari may cooperate with the police by nominating the applicant as the person who funded the contract killing of McGurk.
Peter Medich was called in the defence case to give evidence of the same conversation.
While there were some variations in the evidence concerning the precise detail of the conversation, there was no significant difference in the substance of the discussion. Fundamentally, each gave evidence that the conversation involved assertions that investigating police were putting pressure on Gattellari to nominate the applicant as the person behind the contract killing, that Gattellari's legal costs were substantial, that he needed money from the applicant to fund his defence, and that if money was not forthcoming he would cooperate with the police.
The relevance of this evidence seemed to lie in its capacity to undermine Lucky Gattellari's credibility. The prosecution, no doubt aware that this attack on its principal witness's credibility was to come, called Loren Gattellari to confront the attack pre-emptively and, perhaps, in accordance with its duty of fairness. In any event, there was no issue between the parties that the evidence was relevant, at least, to the issue of Gattellari's credibility. It was relevant to that issue as it demonstrated both a capacity to engage in dishonest and potentially criminal conduct (including extortion and blackmail) and suggested that Gattellari had a motive to implicate the applicant in the murder.
Ground 5 concerns the following two questions asked by the Prosecutor in cross-examining Peter Medich: "Q: I suggest that the reason why you didn't make a statement to the police after you'd had the discussion with Loren Gattellari on 15 October 2010 was because the conversation with Loren Gattellari was that his father was holding back on telling the truth about your father's involvement in the murder? A: No. Q: For you to make such a statement would have been to implicate your father? A: No."

[97]

(a) A miscarriage of justice resulted from the failure of the trial judge properly to direct the jury regarding how a finding of guilty in respect of Count Two might be used in respect of Count One.

[98]

(b) A miscarriage of justice resulted from the failure of the trial judge to direct that certain evidence relevant to Count Two was not admissible for use in proving Count One.

[99]

(c) A miscarriage of justice resulted from the failure of the trial judge to warn the jury against impermissible tendency reasoning.

The murder of McGurk occurred on 3 September 2009. The intimidation of his wife occurred almost a year later on 8 August 2010. This ground of appeal is largely concerned with evidence of matters and events in the period leading up to the intimidation offence. There was no objection to this evidence, no application for its use to be limited to proof of the second count, and no application that the jury be warned not to engage tendency reasoning. Rule 4 applies to each part of the ground as formulated and set out above.
The applicant summarised the evidence in question as follows: [20] "i. [T]elephone intercept material between the appellant and Andrew Howard (between May and August 2010) including Howard referring to 'getting the message to her,' and Howard's commercial unconscionability (whilst employed by the appellant) by intending to bring external pressures upon the deceased's wife to achieve a settlement; ii. the appellant suggesting in a telephone call on 12 July 2010 at 12:11 pm that a message ought 'be gotten across to …. through our friends you know um Richie, and Co.' (This is a reference to Richie Vereker, a mutual friend of the appellant and the deceased's wife); iii. the appellant's tone of voice in various of the mid 2010 intercepts with Howard which were said to illustrate an increasing hostility over complications attaching to the litigation; iv. a lawfully intercepted telephone conversation between the appellant and Gattellari of 4 August 2010 which Gattellari claimed was to be understood as the appellant acknowledging their mutual intention to use a business trip to China as an alibi for the intimidation; v. an asserted consciousness of guilt said to arise from the appellant's conduct in failing to discuss with his daughter, on 20 August 2010, an accusation made to him at a lunch at Arun Thai, with mutual friends (on the same date) that the appellant was responsible for the visit to the deceased's wife; and vi. an admission by the appellant - incorrectly summarised by the trial judge and consequently incorrectly left as evidence of the intimidation where his Honour said without correction by either party: 'The Crown also took you to evidence of Mr Crockett that the accused had said to him words to the effect, 'I should have fucked her off like McGurk' - a reference to Mrs McGurk.' It was no part of the evidence of Crockett that the appellant said anything about 'fucking off' Mrs McGurk." (Footnotes omitted.)

[100]

The proviso and disposition of the appeal

Section 6(1) of the Criminal Appeal Act provides that an appeal is to be allowed if "on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal". The matters raised under grounds 4, 5 and 7 meant that the applicant did not have a trial according to law. Those matters gave rise to a miscarriage of justice: GBF v The Queen [2020] HCA 40 at [24]. [32] The proviso to s 6(1) is in the following terms: "… provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
The respondent did not raise the proviso in its written submissions. In both written and oral submissions, the respondent argued that the grounds of appeal asserting specific error (grounds 3-7) should be rejected and that there was no miscarriage of justice arising from the matters raised under those grounds.
On the oral hearing, the respondent submitted: "Ultimately when the Court views the evidence as a whole, the Court would readily conclude that this is not a case where a jury must have entertained a doubt as to the applicant's guilt. On the whole of the evidence it was open to the jury to be satisfied, clearly beyond reasonable doubt, that the applicant was guilty of both offences. Those are the Crown submissions in relation to the unreasonable verdict grounds. Your Honours there's one last matter, it's a very small matter and I'm sure the Court would know what the Crown's position is without me needing to say it but I haven't actually put it in my written submissions. The Crown's position is that if the Court was to uphold any of grounds 3 to 7, what I'll call the specific grounds, which the Crown strongly says, obviously based on our submissions that you wouldn't but if you were or any combination of them, the appropriate order is clearly a retrial. I'm sure that goes without saying and I'm sure the Court would understand the matters that the Crown would readily point to in terms of the gravity of the crime and the public interest associated with it. But the fundamental proposition is, the Court would not uphold any of those grounds of appeal and would not find that the two verdicts were unreasonable." [33]

[101]

Some of the authorities on the proviso

In spite of the approach of some intermediate appellate courts to the High Court's judgment in Weiss v The Queen, [35] the common form proviso does not authorise an intermediate appellate court to usurp the constitutional role of the jury. [36] As Deane J, dissenting in the outcome, said in Wilde v The Queen: "The fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law. The proviso to s.6(1) - which empowers the New South Wales Court of Criminal Appeal to dismiss an appeal, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of an appellant, 'if it considers that no substantial miscarriage of justice has actually occurred' - does not negate that principle. The reason why that is so is that it is simply not open to a court of criminal appeal to dismiss an appeal, in reliance on such a proviso, on the ground that there has been 'no substantial miscarriage of justice' in a case where error, impropriety or unfairness has pervaded and affected the trial to an extent where the overall trial ceased to be a fair trial according to law. In such a case, the verdict of guilty is intrinsically flawed and it is no part of the function of a court of criminal appeal to say that the accused is, in its view, so obviously guilty that the requirement of a fair trial according to law can be dispensed with. If it were otherwise, the fundamental prescript of the criminal law could be reduced to a mockery and the injustice of a conviction without a relevantly fair trial according to law could be made the occasion for trial by appellate judges who had seen no witnesses, heard no evidence and had no direct contact with the atmosphere, the tensions, the nuances or the reality of the actual trial. In referring to a 'relevantly' fair trial, I have intended to exclude the case where it can be seen that any error, impropriety or unfairness did not prejudice or colour the overall trial or that the residual effect (i.e. viewed in the context of the overall trial) of any such error, impropriety or unfairness could not have influenced the jury in reaching their verdict on the charges upon which the accused was convicted and in respect of which the appeal to a court of criminal appeal is brought." [37]

[102]

Application of the proviso in the applicant's case

Whether there has been a "substantial miscarriage of justice" in a case where a trial has miscarried because of the wrongful admission of evidence, a misdirection (or failure to provide a proper direction), or other error of law, is a question of judgment. That question must be answered by reference to the nature of the error (or errors) that pervaded the trial considered against, or by reference to, the admissible evidence adduced by the prosecution to prove the charge levelled against the accused person.

[103]

The strength of the prosecution case

The prosecution case against the applicant was strong. However, it was very dependent on the evidence of Gattellari. Gattellari's evidence was dubious and unimpressive and could not be accepted without significant support in the other evidence. There was support to be found in the prosecution case but I cannot conclude, at this distance from the atmosphere of the trial, that the combination of errors that impacted on the fairness of the applicant's trial did not result in a substantial miscarriage of justice. Even allowing for the other inculpatory evidence called in the prosecution case, the evidence of the applicant instructing Gattellari to arrange the murder and the intimidation of the deceased's wife came solely from Gattellari. His credibility was critical and was subject to a powerful attack. The authorities emphasise that where the credibility of a particular witness or witnesses is central to the outcome, the proviso will less readily be engaged by a court of criminal appeal. [45] In such cases, Weiss did "not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction". [46]
I have considered the whole of the evidence adduced at the trial, a deal of which has been referred to by the Chief Judge at Common Law and was summarised in the respondent's submissions.
The prosecution adduced powerful evidence of motive and what Senior Counsel for the applicant described as a case of "cui bono". This evidence came from a variety of sources and much of it was not, and could not be, disputed. The two men were business associates and money lenders. They had fallen out over substantial sums of money which, to oversimplify the situation, the deceased had effectively defrauded from the applicant by misusing millions of dollars to purchase a home or liquidate debt over real estate. There was litigation between the men and the applicant had been unsuccessful in obtaining favourable outcomes at court. There was evidence that the deceased was responsible for, and had been charged with, a "fire-bombing" of property associated with the applicant and that the applicant suspected his involvement in a car accident in the months leading up to the killing. The animosity between the two men was mutual. It was established by evidence from a range of witnesses, court documents and agreed facts. Paul Mathieson, an associate of both the applicant and McGurk, said at one stage the deceased was "extremely agitated" and said he "wanted to bring [the applicant] down". The prosecution case was that by killing McGurk and threatening his wife, the applicant would benefit if Mrs McGurk succumbed to the threats and intimidation by repaying the large debt owed by the deceased's estate to the applicant.

[104]

Conclusion as to the prosecution case and the important of credibility issues

Considering the evidence as a whole, the prosecution case against the applicant was a strong one. However, as the trial Judge directed the jury, it relied largely on an acceptance of Gattellari's evidence. His Honour told the jury: "It will be apparent to you, I am sure, that in the present case, the Crown seeks to establish the guilt of the accused largely on the basis of the evidence of a single witness, Mr Gattellari. The Crown has called, obviously, other witnesses, but to a large extent the Crown relies on the evidence of Lucky Gattellari to prove its case against the accused in relation to each count in the indictment. In a case such as that, the law requires me to give you a direction that you should exercise caution. This is an additional direction over and above those that I have already given you, even though it takes into account some of the subject matter that I have already dealt with. It is an additional direction that you must apply in the course of your deliberations. You must exercise caution, members of the jury, before you can convict the accused because the Crown case depends largely on accepting the reliability of a single witness, namely, Lucky Gattellari. That being so, unless you are satisfied beyond reasonable doubt that Lucky Gattellari is both an honest and an accurate witness in the account he has given to you, you cannot find the accused guilty." [48]
Earlier in the summing up, the trial Judge warned the jury about the potential unreliability of the evidence of both Gattellari and Kaminic, each of whom received a considerable benefit by co-operating with the authorities and giving evidence against the applicant. Gattellari received a substantial reduction in his sentence, including a 5% discount for co-operating with the police and a 30% discount for his undertaking to give evidence. His total discount, including the plea of guilty, was 60% and resulted in a sentence for murder of 10 years with a non-parole period of 7 years and 6 months. Kaminic received an indemnity from prosecution for (accessory before the fact to) murder and a total discount of 50% from his sentence for his plea of guilty to accessory after and his assistance. He was sentenced to 4 years and 6 months with a non-parole period of 2 years and 6 months.
There were substantial issues at the trial about the credibility of these and other witnesses. Those other witnesses included Paul Mathieson, Matthew Crockett, Bryan Collis and Andrew Howard.

[105]

Conclusion as to the proviso to section 6(1)

The relevance of these matters to the appropriateness of applying the proviso is obvious. Even allowing for the substantial body of undisputed and documentary evidence, the case was to a very large degree dependent on an assessment of the credibility of the witnesses called on both sides. As explained above, the proviso will less readily be invoked in such cases. [49] The combination of errors in the trial proceedings must be considered as a whole.
In relation to ground 4, I am unable to accept that affording the applicant the opportunity to undertake further cross-examination had any impact on remedying the problem created by the introduction of inadmissible and prejudicial evidence in the re-examination of Kaminic. Putting aside the discretion to discharge the jury, the only viable solution at that point was to direct the jury that it must disregard the evidence and explain that Kaminic could not see inside the mind of Safetli or provide an opinion of what he meant. I also accept that the evidence and the submissions made by the Prosecutor had the capacity to prejudice the applicant by extending the period of his involvement to a time when neither Gattellari nor anybody else suggested he had solicited the murder or discussed the possibility of killing McGurk. The evidence and submissions constituted a subtle but important shift in the prosecution case. Gattellari denied the relevant conversation but his evidence was that, at the time the Safetlis raised with him the possibility of doing something "heavier" including "the final job", "the McGurk matter hadn't even come up" (AB 2175).
If ground 5 stood alone, it may be appropriate to find that the impermissible questioning was unlikely to have impact on the overall fairness of the trial. That is because there were no submissions to the jury on the evidence and because the ground focusses attention on two questions in the context of a trial that was conducted over many weeks. However, it does not stand alone and the inappropriate questioning came at the very conclusion of the cross-examination of Peter Medich. It was likely to have stuck in the mind of the tribunal of fact.
Ground 7 involved a failure to direct the jury on an issue that may have had a significant impact the outcome of the case. It had a capacity to impact on an overall assessment of Gattellari's credibility and the case as a whole in a significant way.

[106]

Should there be an acquittal or a re-trial?

I accept the respondent's submissions that this is not an appropriate case to enter a verdict of acquittal. The reasons for that conclusion are essentially twofold. First, the offences are extremely serious and there is a strong public interest in such cases being determined and adjudicated at trial. Second, the prosecution case, in spite of the weaknesses in Gattellari's evidence, is a strong one. I do not accept the applicant's submission that the subjective circumstances of the case, such as the applicant's age, justify this Court entering verdicts of not guilty. Subject to the discretion of the Director of Public Prosecutions, there should be a re-trial.
For those reasons, I would make the following orders: 1. Where necessary, grant the applicant leave to appeal. 2. Appeal against conviction allowed. 3. Quash the convictions on both counts. 4. Order a re-trial.

[107]

Endnotes

See for example Armstrong v R [2013] NSWCCA 113 at [50] (Harrison J, Simpson J (as her Honour then was) and Bellew J agreeing), Lyndon v R [2014] NSWCCA 112 at [29] (Basten JA, Button J and RS Hulme AJ agreeing);
Armstrong v R [2013] NSWCCA 113 at [50] (Harrison J, Simpson J (as her Honour then was) and Bellew J agreeing).
See Evidence Act 1995 (NSW), ss 60 and 76.
Hoeben CJ at CL at [210] - [216] and [647] - [660].
It is footnote [40] in 244 CLR 369 but, mysteriously enough, footnote [27] in the medium neutral version ([2011] HCA 36).
See R v Dolding at [33] and the reference to R v Scott Alan May (No 2) [2008] NSWSC 595. Cf R v Al Batat & Ors (No 9) [2020] NSWSC 1101 at [46]ff and at [54].
An earlier trial had resulted in the jury being discharged when it was unable to agree upon a verdict on either count.
Mraz v The Queen (1955) 93 CLR 493 at 514 (per Fullagar J); [1955] HCA 59.
In this case the Criminal Appeal Act, s 6(1).
Ibid.
(2005) 224 CLR 300 at 308 [18]; [2005] HCA 81.
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [12] per Kiefel CJ, Bell, Keane and Gordon JJ.
For example, an offence of concealing a serious indictable offence under s 316 of the Crimes Act 1900 (NSW).
AWS at [335]-[345].
Reference was made to R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345 at [29].
Respondent's written submissions ("RWS") at [109].
Appeal Transcript, 20 May 2020, pp 66-67.
There was apparently no objection to the evidence of Mr McCarthy.
Appeal Transcript, 20 May 2020, p 66.
AWS at [366].
Summing Up ("SU") at 57.
SU at p 95 - 96.
See Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 at [359]-[367] (Elomar and Ors v R)
The trial Judge referred to this conversation as referring to Mrs McGurk whereas it in fact it referred to the applicant's wife. Counsel did not correct this error. See SU at p 104 and Prosecutor's Closing Address at Trial Transcript, 5 April 2018, p 3101.

Parties

Applicant/Plaintiff:

Medich

Respondent/Defendant:

Legislation Cited (5)

See Evidence Act 1995(NSW)

Crimes Act 1900(NSW)

Crimes (Domestic and Personal Violence) Act 2007(NSW)

Criminal Appeal Act 1912(NSW)

Evidence Act 1995(NSW)

Cases Cited (134)

CA 149 HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16 Hogg v R [2019] NSWCCA 323 House v The King (1936) 55 CLR 499; [1936] HCA 40 IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 JWM v R [2014] NSWCCA 248 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Lyndon v R [2014] NSWCCA 112 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mac v R [2014] NSWCCA 24 Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 Maric v The Queen (1978) 52 ALJR 631 Masri v R [2015] NSWCCA 243 Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 Petch v R [2020] NSWCCA 133 Picken v Regina; Regina v Picken [2007] NSWCCA 319 Poniris v R [2014] NSWCCA 100 Qualtieri v Regina (2006) 171 A Crim R 463; [2006] NSWCCA 95 Quartermaine v The Queen (1980) 143 CLR 595; [1980] HCA 29 R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 R v AH (1997) 42 NSWLR 702 R v Al Batat & Ors (No 9) [2020] NSWSC 1101 R v ATM [2000] NSWCCA 475 R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 R v Leung and Wong (1999) 47 NSWLR 405; [1999] NSWCCA 287 R v Medich (No 8) [2016] NSWSC 1713 R v Medich (No 32) [2018] NSWSC 253 R v Medich (No 43) [2018] NSWSC 886 R v Scott Alan May (No 2) [2008] NSWSC 595 R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377 R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345 R v Walters [2002] NSWCCA 291 Ratten v The Queen [1972] AC 378; [1971] UKPC 23 RGM v R [2012] NSWCCA 89 Roach v R [2019] NSWCCA 160 Sanchez v R (2009) 196 A Crim R 472; [2009] NSWCCA 171 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Smale v R [2007] NSWCCA 328 Smith v R [2019] NSWCCA 162 Standen v Regina [2015] NSWCCA 211 Tekely v R; Nagle v R [2007] NSWCCA 75 Toalepai v R [2009] NSWCCA 270 Trieu v R [2012] NSWCCA 169 Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 Ulutui v The Queen (2014) 241 A Crim R 574; [2014] VSCA 110 Vickers v R (2006) 160 A Crim R 195; [2006] NSWCCA 60 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17 Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21

Solicitors: Richardson Law - Applicant Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2010/356916 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Medich (No 43) [2018] NSWSC 886 Date of Decision: 23 April 2018 Before: Bellew J File Number(s): 2010/356916

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Ronald Edward Medich, was charged with the murder of Michael McGurk on 3 September 2009 (Count 1) and the intimidation of Kimberley McGurk with the intention of causing fear or harm on 8 August 2010 (Count 2). He first stood trial in the Supreme Court before Bellew J in 2017, however the jury were unable to agree on a verdict in respect of both counts. The applicant stood trial before Bellew J again in 2018 and on 23 April 2018 the jury returned verdicts of guilty for both counts. He was sentenced to an aggregate period of 39 years imprisonment with a non-parole period of 30 years. The applicant appealed his conviction but did not appeal his sentence. At trial, there was no issue that Fortunato Gattellari ("Gattellari") had arranged both the murder and the intimidation either directly, or indirectly through Senad Kaminic ("Kaminic") and Haissam Safetli ("Safetli"). The primary issue at trial was whether the Crown had proved beyond reasonable doubt that Gattellari had done so at the instigation of the applicant. The applicant filed a notice containing seven grounds of appeal. Held, dismissing the appeal (Bathurst CJ and Hoeben CJ at CL agreeing; Hamill J in dissent) Ground 1: Whether the jury verdict in respect of Count 1 is unreasonable Ground 2: Whether the jury verdict in respect of Count 2 is unreasonable (i) It was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of both offences. This is not a case where the jury must have entertained a doubt as to the applicant's guilt. The asserted factual propositions that gave rise to doubt as to the applicant's guilt were speculative in nature when regard is had to the Crown's strong positive case that established the applicant's position as the originator and financier of the single joint criminal enterprise to murder the deceased and intimidate his wife. These grounds have not been made out: [134] (Bathurst CJ); [542], [626], [795] (Hoeben CJ at CL); [798] (Hamill J). (ii) Although the evidence of Gattellari was riddled with problems, it was not the only evidence capable of implicating him in the murder of Michael McGurk. There was powerful evidence of the applicant's motive which suggested his involvement in both offences. As to the contradictory evidence between Kaminic and Gattellari, the jury was given a warning about its potential unreliability, and having heeded that warning, it was open to reach verdicts of guilty: [798] (Hamill J). M v The Queen (1994) 181 CLR 487; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394; 376 ALR 478, referred to. Ground 3: Whether a miscarriage of justice resulted from the Crown Prosecutor's address to the jury asserting that the evidence was capable of establishing that cash currency was deposited into the accounts of the electrical companies thereby corroborating Gattellari's account (i) The additional material relied upon in support of this ground, that is certain financial reports relating to the electrical companies which were under the control of Gattellari, is admissible as it was not 'fresh evidence' and was entitled to be adduced by the applicant on the basis that it supported the assertion in this ground of appeal: [2] (Bathurst CJ); [802] (Hamill J). Reliance on the contents of this material for the purpose of discrediting a submission made in the second trial is an attempt to rely upon this material as 'fresh evidence.' There has been no attempt made to satisfy the strict tests necessary to enable the material to be used as 'fresh evidence' for the purpose identified by senior counsel for the applicant and leave to rely on such material should be refused: [174]-[177] (Hoeben CJ at CL). R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356, referred to. (ii) The Crown Prosecutor's address to the jury was not improper due its references to correct statements of questions, answers and transcript material. The Crown did not submit that the evidence of Messrs Collis and Shipley directly corroborated Gattellari's version of events nor was it suggested that the evidence supported an inference that the cash allegedly provided by the applicant was actually deposited into the bank accounts of the electrical companies. Further, the limited and selected tendering of the report shown to Mr Collis demonstrated that there were large sums of (cash) money available to Gattellari. It was open for the Crown to adopt the position ultimately taken. Whether or not rule 4 of the Criminal Appeal Rules applied, there was no miscarriage of justice in respect to this ground. This ground of appeal has not been made out: [3]-[10] (Bathurst CJ); [178]-[208] (Hoeben CJ at CL); [799]-[801] (Hamill J). Lyndon v R [2014] NSWCCA 112, considered. Armstrong v R [2013] NSWCCA 113, referred to. Ground 4a: Whether the trial judge erred in failing to discharge the jury after the admission of inadmissible assumptions on the part of Senad Kaminic elicited by the Crown Prosecutor in re-examination giving rise to a miscarriage of the kind requiring this Court to set aside the verdicts Ground 4b: Whether a miscarriage of justice has been occasioned by the admission of evidence of assumptions of Senad Kaminic (i) The trial judge did not apply incorrect principles in his refusal to discharge the jury and instead had regard to both complaints made by senior counsel for the applicant in the Court below. His Honour appropriately dealt with the error that led to the evidence being inadmissible, that is that the evidence was not led in chief, by granting the applicant's counsel at trial leave to further cross-examine. Further, the trial judge was correct in concluding that these circumstances did not result in a change in the Crown case and consequently what occurred did not amount to a miscarriage of justice. This ground of appeal has not been made out: [82]-[108] (Bathurst CJ). The questions in re-examination did arise from the cross-examination by senior counsel for the applicant and there was no error in this respect. A single question of this kind does not lay an appropriate foundation to justify the assertion that there had been a miscarriage of justice when considered in the context. Further, the Crown did not attempt, in its final address, to persuade the jury that the evidence adduced in re-examination as to the Safetli conversation was in furtherance of the joint criminal enterprise. Rule 4 of the Criminal Appeal Rules (NSW) applies in respect to ground 4b. This ground of appeal has not been made out: [209]-[253] (Hoeben CJ at CL). Maric v R (1978) 52 ALJR 631; Crofts v R (1996) 186 CLR 427; [1996] HCA 22; Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486; Hamide v R (2019) 101 NSWLR 405; [2019] NSWCCA 219; Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, considered. Weiss v R (2005) 224 CLR 300; [2005] HCA 81; Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; [2012] HCA 14; Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, referred to. (ii) There was a miscarriage of justice as a result of the matters raised by ground 4. The Crown Prosecutor exceeded the limits on re-examination and the evidence elicited was inadmissible as both hearsay and as opinion evidence. There is no occasion to apply rule 4 of the Criminal Appeal Rules (NSW) arising from the absence of immediate objection because of the failure of the prosecution to put the applicant and the Court on notice that it was to be adduced, and because an application to discharge the jury was made almost immediately after the evidence was adduced. This ground of appeal is upheld: [803], [811]-[862] (Hamill J in dissent). Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379; Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, considered. Picken v R; R v Picken [2007] NSWCCA 319; Greenhalgh v R [2017] NSWCCA 94; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Hogg v R (2019) 101 NSWLR 524; [2019] NSWCCA 323; GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037; Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, referred to. Ground 5: Whether the trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor's cross-examination of Peter Medich (i) Not only did senior counsel for the applicant at trial take no objection to the two questions in cross-examination that are the subject of this ground of appeal but there was no issue subsequently raised at any point in the trial about the questions. As such, r4 of the Criminal Appeal Rules (NSW) applies to this ground. Further, in the context of a lengthy and vigorously contested trial it is difficult to see the significance of these questions and this is particularly so when regard is had to the fact that only a peripheral issue was involved. Leave to appeal to rely on this ground is refused: [109]-[117] (Bathurst CJ); [254]-[281] (Hoeben CJ at CL). R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345; Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21; Picken v R; R v Picken [2007] NSWCCA 319, considered. (ii) The Crown Prosecutor's final flourish in their cross-examination of Peter Medich created unfairness. The Crown Prosecutor's question to Peter Medich that he did not report the extortion attempt to police suggested that Peter Medich knew or suspected that his father was guilty, and that he was a part of an attempt to cover up his father's involvement. There was no evidence upon which those implications could be properly based. This ground of appeal is upheld: [804], [863]-[881] (Hamill J in dissent). GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037, referred to. Ground 6a: Whether the trial judge erred in admitting evidence that the applicant engaged Gattellari to arrange debt collection and the surveillance of the applicant's wife Ground 6b: Whether the trial judge erred in his directions to the jury in respect of the use that was to be made of the evidence of debt collection and surveillance of the applicant's wife (i) The trial judge did not fail to adequately specify the relevance of the relationship evidence. To the contrary, the evidence that Gattellari collected debts and arranged surveillance of the applicant's wife, on the applicant's behalf, was highly probative of the nature of the relationship between the two men, that being their close bond and trust. As to the admittance of the evidence, it is not for the accused to select what evidence the Crown may lead to prove a particular fact. The prosecution was not limited to relying on only some of the evidence available to it and the availability of other evidence does not in any way reduce the probative value of the evidence. The close bond and trust between the two demonstrated that the business and personal relationship with them was far from conventional. This ground of appeal has not been made out: [118] (Bathurst CJ); [313]-[318] (Hoeben CJ at CL); [805] (Hamill J). Burrell v R [2007] NSWCCA 65, considered. Masri v R [2015] NSWCCA 243, referred to. (ii) With respect to the use of the evidence, the factual matrix was not representative of a matter involving a significant risk of tendency reasoning in respect of the relationship evidence. Nevertheless, the trial judge gave a sufficient warning to guard against any misuse of the evidence in this way. This ground of appeal has not been made out: [118] (Bathurst CJ); [320]-[325], [330] (Hoeben CJ at CL); [805] (Hamill J). (iii) As to both (a) and (b), on account of the objection taken to the evidence the subject of the ground, Hamill J granted leave under r 4 of the Criminal Appeal Rules (NSW), but nevertheless dismissed the ground: [806] (Hamill J). Ground 7a: Whether a miscarriage of justice resulted from the failure of the trial judge properly to direct the jury regarding how a finding of guilt in respect of Count 2 might be used in respect of Count 1 Ground 7b: Whether a miscarriage of justice resulted from the failure of the trial judge to direct that certain evidence relevant to Count 2 was not admissible for use in proving Count 1 Ground 7c: Whether a miscarriage of justice resulted from the failure of the trial judge to warn the jury against impermissible tendency reasoning (i) The evidence that the applicant was motivated to act in a certain way leading up to the intimidation offence in mid-2010 was cross-admissible, as the case was conducted on the basis that there was a single joint criminal enterprise which encompassed both the killing of Michael McGurk and the intimidation of Kimberley McGurk: [119]-[120] (Bathurst CJ); [345]-[350] (Hoeben CJ at CL); [882]-[887] (Hamill J). (ii) The trial judge (a) indicated the use to which the evidence could be put, namely, the accused's state of mind, (b) the relevance of the evidence and (c) identified the need to deal with each count separately, placing emphasis on the Crown's reliance on one joint criminal enterprise. In those circumstances, a general anti-tendency direction was not necessary as there was no real risk that the jury would adopt tendency reasoning. This ground of appeal has not been made out: [123]-[133] (Bathurst CJ). JWM v R [2014] NSWCCA 248; (2014) 245 A Crim R 538; Toalepai v R [2009] NSWCCA 270; Hamilton (a pseudonym) v R [2020] NSWCCA 80; Qualtieri v R (2006) 171 A Crim R 473; [2006] NSWCCA 95; RGM v R [2012] NSWCCA 89, referred to. (iii) The 2010 evidence was circumstantial and capable of being relied upon as supporting the existence of a single joint criminal enterprise in respect of both counts and the associated alleged ongoing state of mind on the part of the applicant. The evidence supported an inference that the applicant in fact had a particular state of mind that was a continuous or ongoing one throughout the relevant period from 2009 to 2010 and this evidence was admissible without tendency reasoning being engaged. As there was no risk of tendency reasoning, nor was an anti-tendency direction sought, no such direction was required. Leave to appeal to rely on this ground is refused: [350]-[362] (Hoeben CJ at CL). Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R (2014) 316 ALR 206; [2014] NSWCCA 303, considered. Higgins (a pseudonym) v The Queen [2016] VSCA 47; Mac v R [2014] NSWCCA 24; Davies v The Queen [2019] VSCA 66, referred to. (iv) The jury should have been directed not to reason to guilt on the murder charge by way of tendency reasoning arising from the evidence and any evidence in relation to count two. That is, the jury's reasoning process could have, and most likely would have, involved tendency reasoning in proof of the murder charge. The jury was not directed as to the way in which a verdict of guilty on one count could be used in resolve the other count. A direction ought to have been given in relation to the evidence of the events leading up to the intimidation of Kimberley McGurk. The failure to seek a direction on the part of counsel at trial was an oversight, rather than a decision motivated by tactic. This ground of appeal is upheld: [807], [888]-[890], [895]-[897] (Hamill J in dissent). BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47; R v Walters [2002] NSWCCA 291, considered.

Kaminic's evidence

Early in his evidence, Kaminic was asked about a time when he went to a courthouse in Sydney for a court case relating to the applicant. He said that he drove Gattellari to the city that day. He then gave the following evidence: "Q. Before going to the courthouse, did you and Mr Gattellari meet with Mr Medich at a coffee shop? A. INTERPRETER: Yes. Q. Were there other people at that meeting at the coffee shop? A. INTERPRETER: Yes. Q. Do you remember who they were? A. INTERPRETER: Andrew Howard, Les Samba. … Q. Was it your understanding that Mr Medich had a matter in court that day? A. INTERPRETER: Yes. Q. Did you know who his court case was against? A. INTERPRETER: Yes. Q. Who was that? A. INTERPRETER: Michael McGurk. Q. Did you know what the court case was about that day? A. INTERPRETER: I think about the money. Q. When you were near or in the courthouse was there a discussion about Michal McGurk? A. INTERPRETER: Yes, they mentioned him. Q. Did you hear Mr Medich say something about Michael McGurk? A. INTERPRETER: Yes, he mentioned him and he was mostly concerned whether he will show up or not. Q. What did he say about whether he would show up or not? A. INTERPRETER: Yes, he didn't know and he was approximately [sic] nervous, you know. … Q. While you were in the vicinity of the courthouse, did Lucky Gattellari ask you something concerning Mr McGurk? A. INTERPRETER: Yes. Q. What did he say to you? A. INTERPRETER: He asked me to ring Bass Safetli. Q. Did you understand that was in relation to the issue whether Michael McGurk would come to the courthouse that day? A. INTERPRETER: Yes. Q. Following that conversation with Mr Gattellari, did you telephone Bassam Safetli? A. INTERPRETER: Yes. Q. What did you ask him or tell him? A. INTERPRETER: I just asked him whether he sure whether McGurk will come to the courtroom or not and he said he was following him in the traffic and he lost him and he's not sure whether he will come or not. Q. Did you ask him to go and watch or to watch whether Michael McGurk would come to the courthouse? A. INTERPRETER: Yes, Lucky told him to ask him whether he will come or not and he just asked me to check, yes, that information. Q. Did you and Lucky accompany Mr Medich into the courthouse that day? A. INTERPRETER: Yes."
Kaminic stated that this occurred at the beginning of February 2009.
Kaminic was then asked about a subsequent meeting between him, Gattellari and the Safetlis. His evidence was to the following effect: "Q. Mr Kaminic, some time after the day you went to the courthouse for Mr Medich's court case, was there a meeting between you and Haissam Safetli, Bassam Safetli and Lucky Gattellari? A. INTERPRETER: Yes. Q. Was that at Mr Gattellari's house? A. INTERPRETER: Yes. Q. Was there a discussion at that meeting about Michael McGurk? A. INTERPRETER¨ Yes. Q. Did Mr Gattellari ask Haissam and Bassam Safetli to do something in relation to Michael McGurk? A. INTERPRETER: Yes. Q. What did he ask them to do? A. INTERPRETER: To follow him and to know where he's moving around. Q. Did he ask them to do anything in relation to getting photos? A. INTERPRETER: Yes. Q. Did Mr Gattellari tell you who that following or surveillance would be for? A. INTERPRETER: Yes. Q. Who did he say it was for? A. INTERPRETER: Yes, he said that he would notify Medich to let him know about his movements? … Q. Did Haissam Safetli arrive at that meeting at Mr Gattellari's house carrying a newspaper? A. INTERPRETER: Yes. Q. What did you see in relation to that newspaper? A. INTERPRETER: Oh, on one part it was McGurk's photo. Q. At the meeting when Mr 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. INTERPRETER: Yes. Q. When he said 'This guy's causing you a lot of trouble', who did you understand him to be referring to? A. INTERPRETER: McGurk. Q. When he said that, did you or Lucky Gattellari respond to him? A. INTERPRETER: Lucky asked him, 'What do you think like that'?"

[2007] NSWCCA 65

[2019] VSCA 66

[2016] VSCA 47

[2011] HCA 36

[2014] VSCA 110

[1978] HCA 39

(1988) 165 CLR 87

(2008) 232 CLR 438

(2015) 91 NSWLR 258

(2012) 246 CLR 92

(2012) 246 CLR 469

(1997) 191 CLR 275

(1996) 186 CLR 427

(1977) 137 CLR 517

(2014) 316 ALR 206

(2015) 256 CLR 47

(2020) 94 ALJR 1037

(1998) 154 ALR 527

(2011) 245 CLR 282

(2008) 235 CLR 334

(1936) 55 CLR 499

(2016) 330 ALR 382

(2018) 264 CLR 62

(2018) 265 CLR 196

(2011) 244 CLR 352

(1994) 181 CLR 487

(2008) 232 CLR 397

(1978) 52 ALJR 631

(1955) 93 CLR 493

(2017) 96 NSWLR 155

(2020) 94 ALJR 394

(1980) 143 CLR 595

(1997) 42 NSWLR 702

(2018) 100 NSWLR 314

(1999) 47 NSWLR 405

(1999) 48 NSWLR 101

(2011) 243 CLR 400

(1961) 104 CLR 1

(2005) 224 CLR 300

(1988) 164 CLR 365

(1970) 123 CLR 334

(2012) 84 NSWLR 581

(2019) 101 NSWLR 405

(2019) 101 NSWLR 524

(2019) 101 NSWLR 455

(2011) 265 FLR 276

(2018) 92 ALJR 689

(2019) 93 ALJR 438

(1999) 196 CLR 297

(2005) 62 NSWLR 346

(1978) 140 CLR 364

(1986) 160 CLR 392

(2016) 259 CLR 449

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R v Cranston

The principles were helpfully summarised by this Court in Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 at [126]: "The principles relating to an application for the discharge of the jury and appellate review thereof were reviewed by this Court in Khazaal v The Queen (2011) 265 FLR 276 at [265]ff per Hall J. The following principles emerge from his Honour's review and from the two leading cases he cites Crofts v The Queen (1996) 186 CLR 427; 88 A Crim R 232 and Maric v The Queen (1978) 52 ALJR 631: (1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440; 241. (2) In deciding an application to discharge the jury, key considerations include: (a) the fairness of the trial: Crofts at 440; 241; (b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to 'have been left vividly etched on the mind of the jury': Crofts at 441; 242; (c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440; 241; (d) the stage at which the mishap occurs: Crofts at 440; 241; Maric at 635; (e) the deliberateness of the wrongful conduct: Crofts at 440; 241; Maric at 635; (f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; 241; Maric at 635. (3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635. (4) The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that '[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict', and in Crofts, at 441; 242, the question was put similarly as whether, in the circumstances, the appellate court can 'say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable'. (5) Significant leeway must be allowed to the trial judge to evaluate these and other considerations, bearing in mind 'that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript': Crofts at 440-441; 241. (6) Nevertheless, the duty of an appellate court considering a challenge to the exercise of discretion to refuse a discharge 'is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind': Crofts at 441; 242, but rather must apply the broader test stated at (4) above."

Although it was stated in Crofts that the consideration of whether there was a substantial miscarriage of justice involved the question of whether an appellate court could say with assurance that, but for the omission of the inadmissible evidence a conviction was inevitable, the principles concerning the application of the proviso to s 6(1) of the Criminal Appeal Act laid down in Weiss and subsequent cases should be followed in determining this issue. Those principles were conveniently summarised by Bell P in Hamide in the following terms: "[94] Where what is being considered is whether a substantial miscarriage of justice (relevant in the present case by reason of the terms of the notice of appeal - see [16] above) occurred, Weiss at [39] sets forth three fundamental propositions that 'must not be obscured'. These are: '[39] … First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.' [95] Without being prescriptive or exhaustive, the cases establish that in assessing whether there has been a substantial miscarriage of justice: (i) the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict: Weiss at [43]; (ii) it cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty (Weiss at [44]). This negative proposition states a necessary but not sufficient condition for applying the proviso; some errors can constitute a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable: Lane v The Queen (2018) 92 ALJR 689; [2018] HCA 28 at [38], citing Baiada; and (iii) the terms of the proviso permit the appellate court to dismiss an appeal from a judgment of the court which gives effect to the verdict of the jury. The proviso does not allow the appellate court to exercise the function of the jury. In a case where a jury has not performed its function in some way (for example, where it has not performed its function of reaching a unanimous verdict), the terms of the proviso do not permit an appellate court to dismiss an appeal on the basis that it is satisfied of the guilt of the accused: Lane at [48], [54]; OKS v State of Western Australia (2019) 93 ALJR 438; [2019] HCA 10at [36]."

The trial judge then dealt with the evidence concerning the relationship between the applicant and Gattellari, which directly related to the evidence the subject of sub-paragraph (iv) of the complaint. He made the following remarks: "The purpose for which that evidence has been put before you is that the Crown says that it provides evidence of the background to the incidents which give rise to the charges against the accused. The Crown relies on that evidence to put these incidents - that is, the murder of the deceased and the intimidation of his wife - into what the Crown says is a proper context. That is the purpose for which this evidence is put before you and it is the sole purpose for which the evidence is put before you. The Crown says that if you accept that evidence, either wholly or partly, you would come to the conclusion that both before and after the deceased was murdered, Gattellari and the accused enjoyed a very close relationship. It is the Crown's position that without that evidence before you, you would not have, as it were, the entirety of the evidence which puts these relevant events in their proper context. The Crown says that it is necessary, in order to understand the significance of these events, to have that evidence before you. Members of the jury, I stress that the sole reason that the Crown has put that evidence before you is to establish what the Crown says was the true nature of the relationship between the accused and Gattellari before and after the murder, and you cannot use it for any other purpose, because that is the sole purpose for which it is put before you. It is a matter for you whether you accept it or not, but the Crown says if you accept that evidence, you will be satisfied of the nature and extent of this relationship between the accused and Gattellari before and after the murder. I repeat, whether you give it that significance and whether you accept the evidence, are all matters for you, but the only relevance of it, and the only purpose for which it is put before you, is because it goes to what the Crown says was this relationship between the accused and Gattellari."

In these circumstances, I do not think that a general anti-tendency direction was necessary. The jury was told clearly what use was to be made of the evidence. I do not think that in these circumstances there existed a significant risk that in some way the jury would adopt tendency reasoning in their deliberations. See JWM v R [2014] NSWCCA 248; (2014) 245 A Crim R 538 at [147]; Toalepai v R [2009] NSWCCA 270 ("Toalepai") at [49]; Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [39], [108]-[109] ("Hamilton"). The authorities were helpfully summarised by Beech-Jones J in Hamilton when his Honour expressed the principle in the following terms (Adamson J agreeing): "[113] It follows that, notwithstanding the statements of McHugh J in KRM, there is neither a requirement or even a presumption that in all cases in which multiple counts of sexual assault involving different victims are tried together then, unless the evidence in respect of the counts is admissible as tendency evidence on the other counts, an anti‑tendency direction must be given such that a failure to do so will amount to a miscarriage of justice for the purposes of applying rule 4 or satisfying the third limb of s 6(1) of the Criminal Appeal Act. Instead, whether such a direction is required and whether a miscarriage of justice is occasioned by reason of the failure to give such a direction requires an assessment of the likelihood or risk of the jury having engaged in tendency reasoning (Toalepai; Jiang; Lyndon). Ultimately, whether a miscarriage of justice has occurred will depend on whether there was a 'real chance' (BRS at 306), 'it was likely that' (Lyndon at [65]) or there was a 'significant risk' (Toalepai at [49]) that 'forbidden reasoning' would be or was employed (BRS at 306). The assessment of that risk will be undertaken by reference to, inter alia, an analysis of how the respective cases were conducted and the effect of other directions given by the trial judge such as the separate consideration direction referred to in the above passage from Lyndon (at [66]) and by Hayne J in KRM (at [133]) (Lyndon; Toalepai). Further, in making an assessment of the risk that the jury might engage in tendency reasoning in the absence of an anti-tendency direction, the failure of counsel for the applicant at the trial to seek such a direction can affect an assessment of the likelihood that the jury would reason impermissibly in the absence of an anti‑tendency direction (Lyndon at [66]; Erohin at [68]; and see generally ARS v R [2011] NSWCCA 266 at [148])."

The ratio of the trial judge's decision (R v Medich (No 32) [2018] NSWSC 253) is as follows: "10 I interpolate that no objection was taken to those questions when they were asked in re-examination. 11 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." 12 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. 13 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. 14 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. 15 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. 16 It was for those reasons that the application to discharge the jury was refused."

In the appeal when asked to explain how the Crown relied upon the Safetli conversation and the answers in re-examination, senior counsel for the Crown responded: "The Crown relied upon it as per Kaminic's account which was that there was the surveillance that had occurred that had followed on from the Court surveillance that had occurred but it was clear that it was all prior to any agreement being formed in relation to a murder. It also explains - importantly it explains why the approach was subsequently made or why the Safetlis were the ones that it was decided that Kaminic should actually approach once there's that discussion that Kaminic describes having occurred after the meeting with the applicant. It's put into that context in terms of the sequence of events of why the reaching out goes to the Safetlis. ... HAMILL J: When the prosecutor puts to the jury at transcript 3078 and appeal book 4219 line 34 referring to the words, "This man is causing you a lot of problems" followed by the submission and we certainly know that Mr McGurk was causing the accused a lot of problems, what's the forensic purpose of that submission if not to put to the jury they should accept Kaminic's evidence on this, that there was a conversation in February implicating Mr Medich? SMITH: Because the Crown says that what's occurring then is in the context of Kaminic's evidence is that his version of there being surveillance, Kaminic saying that the surveillance was on behalf of the applicant and his understanding is based on what's actually taken place prior to that point so you shouldn't just dismiss him or dismiss his answer in that respect because the Crown's actually saying that that's true and Kaminic knew it to be true because Kaminic was the one that had been involved in organising the surveillance that needed to be done. So it's in terms of pre-empting an attack in relation to Kaminic's description because the Crown case was based on, sorry, the evidence as per Kaminic was that there was this surveillance engaged on the back of the Court proceedings." (AT 64-65)

In cross-examination, senior counsel for the applicant suggested to Gattellari's son that he went to the meeting to try to blackmail Peter Medich (T1901). Loren Gattellari denied this. The terms of the conversation were put to Loren Gattellari by senior counsel as follows: "Q. Did you say to Peter Medich, I've got a message for your father? A. Yes. I explained to him that I needed to let him know-- Q. Sir, the question is did you say, "I've got a message for your father"? HIS HONOUR: Or words to that effect? A. Yes, words to that effect. I explained that I got a message. TERRACINI Q. Did you say, "Mate, you've got to tell your father that if he doesn't put a million bucks in dad's lawyer's account by Monday, dad's going to turn on your father and say that he was ordered to kill McGurk." Did you say that? A. I did not say those words or in that tone. I didn't. Q. Did you say anything like that? A. Yes, I explained to him my dad's situation and how my dad was looking at - to fight this murder charges was going to be around $1 million and that his dad is the one the police are hassling, that they actually want, so if his dad wants my dad to not bring him up he's going to have to come and help my dad financially. And that was the basis of the message. Q. So you said to him that if the money wasn't put into the solicitor's account, dad's going to turn on him, meaning Mr Medich, and say he was ordered to kill McGurk, didn't you? A. I did not say those words, no. I said words to that effect. I said that my dad would start complying with the police. I did not say in the words that you're putting. Q. Did you also, I suggest to you, say this: "Where is he?" Meaning Mr Medich Senior, and Peter Medich says, "He's in Adelaide. I don't even know whether he's on a plane," or words like that? A. I believe after I said my message, Peter said something to the effect that, "You can't contact my dad." And then I questioned, "What do you mean, you can't?" And he goes, "You can't call him. He's in Adelaide or something like that. It's impossible for him to be contacted." And I said, "Well, mate, you're going to have to buy a plane ticket or something because things are moving pretty quickly and, like, your dad really need to get on board with this". Q. Sir, in addition, to the reference to the city of Adelaide, did he say that he didn't know whether he was on a plane? HIS HONOUR: So Peter Medich said he didn't know whether his father was on a plane? TERRACINI: Yes. HIS HONOUR Q. Do you remember that being said? A. No, I just remembered him mentioning he was in South Australia or something like that. TERRACINI Q. All right I suggest to you that after you made this request of Peter Medich, did he say to you, "It looks like you're trying to blackmail my old man"? Did he say that? A. The word blackmail was never mentioned. Q. How long do you think the conversation that you had with Peter Medich went for? A. It was quite brief. Maybe under 10 minutes or thereabouts."

Matthew Crockett, who had accompanied Loren Gattellari, gave some limited evidence in chief and in cross-examination said the following (T1633): "Q. I suggest to you that you said, "Look, Pete, we are here to give you a message"; did you say that? A. Along those lines, not-- Q. Well, words to the effect of, "Pete, we are here to give you a message"? A. I said it was unfortunate. Q. All right. Well, did you also say you're here to give him a message? HIS HONOUR Q. Or something to that effect. A. Yes. TERRACINI Q. Did you also say that you thought he was a pretty good bloke? A. I can't recall. Q. And that, "I like your dad"? A. I can't recall. Q. "But I've got to pass this message on", or words like that? A. Possibly. Q. Did you hear Loren Gattellari say, "Tell your old man that if he doesn't put a million bucks into the lawyer's bank account by Monday, dad is going to turn on him and say that your father ordered a hit on McGurk"? A. No. Q. Did you hear him say, "If he wants to be kept out of it, convince him to pay the money"? HIS HONOUR: This is Loren again? TERRACINI: Yes. Q. Directed at Peter Medich? A. I do recall something similar. Q. "Get back to me immediately. Mum's going to see him" - meaning Lucky Gattellari - "mum's going to see him tomorrow and we've got to send a message through her", or words to that effect? A. I don't recall that part, no. Q. Did Peter Medich say words like, "I don't think I can get a message to him. He's out of town. He's got nothing to do with this"? A. Yes. Q. Do you agree he said that? A. Yes. Q. And Loren Gattellari says, basically, "I don't care. Fly and see him, if you have to, get the message back to me"? A. Yes. Q. I suggest to you that Loren Gattellari was very aggressive at that time; do you agree with that? A. No. Q. Did Peter Medich say, in directing his comments to both of you, "This sounds like it's all flat-out bullshit, I want nothing to do with it"? A. I can't recall. Q. Did he also say, "Effectively, you're trying to blackmail money out of my father"? A. No. Q. I suggest to you he also said, "Look, I'm going sick in the stomach", or words like that? A. I can't recall. Q. Did Loren Gattellari say, "I saw my father in prison today. This is real"? A. I can't recall. Q. Did you say to Peter Medich, "Look, mate, I understand, I don't like even telling you this or being here, but please listen and pass on the message because this is real and you better fucking listen"? A. No. Q. Did Loren Gattellari say, "Mate, tell your father if he doesn't put a million bucks into the lawyer's account by Monday" - and did Peter Medich then get quite annoyed? A. I can't recall. Q. And say, "Just shut up. You don't need to tell me any more of this", or "any more of this twice"? A. I can't recall. Q. Anything else said that you can recall? A. No."

Peter Medich put the conversation in the following terms (T2799): "Q. Okay. Well, what was said, Mr Medich? A. Okay. So we went upstairs to the tavern and ordered some beers and Matt Crockett told me to take my phone out of my pocket and put it behind the bar. And I, at first, was a bit shocked because I didn't know-- HIS HONOUR: Q. Don't tell us that you were shocked. You weren't asked that. Just tell what the conversation was, please. A. The conversation. I put the phone behind the bar I said "Why?" I didn't want to do that. And then we got the beers, we walked outside and he said, "Fine, then put your phone on the couch," which was about three metres way from our table. We walked up to the table, Loren asked me whether or not was wired and he patted me twice on the side and looked down the front of my shirt and said, "We're here to deliver a message to you." And - keep going? Q. Just keep going. A. Sorry. Q. Mr Terracini will ask you another question if he thinks there's a need to. You keep going and tell us what the conversation was. A. Okay. He said they're here to give me a message. They said that if I didn't - that my father had to put a million dollars into Lucky's lawyer's trust account by Monday or they would say - Lucky would say that my father was involved in the crime. Q. What crime? A. The murder of Michael McGurk. Q. Did Loren Gattellari say all of that or was some of it said by Crockett? A. It started off with Matt Crockett. Matt Crockett - I remember the first part of the conversation was "We think you're a good bloke, and all that stuff, but you've got to listen." And then Loren talked over him and directly said, "You know, you've got to put $1 million into the bank account otherwise my dad's going to say that your father's involved". Q. Did you say something about your father being interstate? A. Yes. I said my father was in South Australia. Yes. And then Loren said, "Well, you'd better get on a plane and go and see him. You get this message to him or else," well, you know, "that's it," type of thing.

In the written submissions, the Crown set out the relevance of the evidence: "27 The accused wanted to obtain information that would assist him and disadvantage his wife. It is the Crown case that the accused was attempting to protect his financial interests and assets and utilised Gattellari for those purposes, that is, to orchestrate his own wife being followed, because of the inherent trust between the two men and the close nature of their relationship at that time (as described by one witness Shipley as being 'joined at the hip' and 'speaking with one voice'). … 30 Indeed, the accused's demonstration of trust and closeness with Gattellari saw him also sign a document granting Gattellari power of attorney over his affairs. This extraordinary move illustrates that during this time (June 2010 between the murder of the deceased and the intimidation of the deceased's wife) the two men had an intense bond and level of trust between each other. It places the accused's request to have the deceased's wife intimidated into context. It is also evidence again that is capable of rebutting the suggestion that Gattellari committed the acts for his own reason and on his own accord. The expected evidence is that post murder and the execution of the search warrant upon Gattellari's home four days after the murder the relationship between the accused and Gattellari did not wane or dissolve but rather intensified supporting Gattellari's account that they were in this together from the beginning until their arrest in October 2010. … 33 The extent and depth of this continued business and personal relationship post the murder of the deceased and the willingness of Gattellari to carry out surveillance, accept the transfer of shares and power of attorney and to collect money on the accused's behalf is relevant because it bears upon the assessment of the probability of the existence of a central fact in issue in the trial - that Gattellari was asked by and agreed with the accused to arrange for the murder of the deceased and the subsequent intimidation of the deceased's wife. 34 In the absence of this evidence the jury would be left, on one view, with two extraordinary propositions by the Crown; firstly that the accused and Gattellari were involved in a relatively conventional business relationship and that one day his business partner simply requested him to arrange the murder of another business associate, and intimidate his wife in order to extract monies he believed was owed to him and secondly that Gattellari would just simply agree to this. 35 ... the jury would be able to assess the probability of Gattellari's evidence by reference to the evidence that this was exactly the kind of relationship that he had with the accused. The accused trusted Gattellari to do these activities because of the extraordinary close nature of their relationship. For the accused then to request Gattellari's assistance in killing the deceased and intimidating the deceased's wife in order to achieve those ends, is not such a bizarre and isolated aspect of their relationship as it would otherwise appear."

In response to the matter raised on behalf of the applicant in the appeal, senior counsel for the Crown submitted: "Again, all of these grounds of appeal are being raised for the first time before this Court. There were no issues raised with the relevant aspects of admissibility or directions at trial. The Crown submits that that's because of the way in which the trial was run. The trial was run, clearly presented by the Crown, on the basis that these were clearly a connected series of events, the murder of the deceased and the subsequent intimidation of his wife. They were clearly, on the Crown case, both directed at achieving the same outcome, namely to bring the disputes with the deceased to an end and to get back the millions of dollars that the applicant believed had been stolen from him. The murder alone does not accomplish that outcome and that's why it was clear that the Crown case was that they are a connected series of events that evinced or evidenced a continuing state of mind on the applicant, throughout, in terms of achieving that outcome. On Gattellari's evidence, which the Crown relied upon to found a single joint criminal enterprise approach, was that from early on there was one agreement that was formed between him and the applicant to commit both offences, the murder and the intimidation, in order for that outcome to be achieved. The reason why Gattellari describes them both, having become part of the single joint criminal enterprise is because they are directed at the same outcome. That's the reason why, because of Gattellari's evidence that the Crown ran its case on the basis of a single joint criminal enterprise in respect of both offences. That was the evidence. This wasn't some attempt by the Crown to contrive avoidance of any particular approach by categorising its case in a certain way, this was the Crown reflecting Gattellari's evidence, that from an early stage there was both offences that were part of the joint criminal enterprise and they were both directed to achieving that one outcome." (AT70.19) "It was clear that the Crown case was that the agreement in respect of that single joint criminal enterprise, and importantly the motivation behind it, or that underpinned it, on the applicant's behalf continued throughout the entire period from its interception which is on the Crown case was in or about, or in or from March 2009, all the way through to the completion of the intimidation offence. Your Honours an allegation of an ongoing or continuing state of mind involve tendency reasoning. This is clearly what was being alleged here. The subsequent behaviour in respect of the intimidation could be taken into account because it could be used by the jury to determine if there was the relevant ongoing state of mind that is being alleged by the Crown on its case. Consistent with this there was never any submission at trial that the evidence in respect of each count was not cross-admissible. There was no issue with his Honour's direction that all of the evidence was available in respect of both counts, because of the way the case had been conducted. There was also no request for an anti-tendency direction and one needs to have regard to the way in which, when approached with a case like that on behalf of the Crown, what's the defence answer. And that the Crown says is made very clear and it's set out in the written submissions at para 185. Their approach was essentially that in his submission their case was, clearly the applicant had nothing to do with either offence and he actually says to the jury, you can see part way through that, that in effect his submission is "there wouldn't be any room on our case for you to say he's guilty of the intimidation as opposed to the murder or vice versa". He acknowledges they can do it but his case is not guilty of both, no involvement in this single joint criminal enterprise that's being alleged, that's being driven by this one outcome. Not involved."

The Crown submitted that a fair reading of the transcripts indicated that Safetli was well aware of the applicant's involvement. In support of that proposition, the Crown relied upon: 1. there was a discussion about the nature of the evidence that had been given to the Crime Commission, including as to the number of times Safetli would have met the applicant (Exhibit AD2 p16); 2. in a conversation on 2 October 2010, Safetli indicated that he had now been interviewed three times by the Crime Commission (Exhibit AE2 p1) and that his brother Bassam was also interviewed (Exhibit AE2 p2). They discussed the topics raised by the Crime Commission, including Safetli's level of contact with the applicant (Exhibit AE2 p10). Safetli again talked about money for legal fees and Gattellari said "that's going to be difficult right now" and "well, if my funding comes through I haven't got a problem but right now I'm struggling to keep the business alive … I just can't pluck that sort of thing out of the air, without showing someone" (Exhibit AE2 p13) which indicated that Gattellari is reliant on the applicant for any funding; 3. in a later exchange, Safetli said "You know what, no problem at all, there is only one person that can solve it. How's the big boss going?" Gattellari responds that "they've had him in there twice already, they've subpoenaed all his records, everything". Safetli asked, "Is he panicking?" Gattellari said "No he's, he's calm, that's what I want you to be calm and please get out of your fuckin', get out of your fuckin' head that you've got any problems with fuckin', from the likes of me"; 4. during a conversation on 5 October 2010, while speaking with Kaminic, Safetli made a number of references to the applicant such as "Ron, do you think he gives a shit about me" (Exhibit AF2 p21); "Would he give me that guarantee" (Exhibit AF2 p21); "The only problem with Lucky is he's not the money man, I need to hear it from the money man …" (Exhibit AF2 p22) and "Will you give me that personal guarantee from Ron?" (Exhibit AF2, p 22), again indicating that Safetli and Kaminic were well apprised of the applicant's involvement; and 5. the conversation on 8 October 2010, is substantially about the applicant and Safetli seeking an assurance from the applicant rather than Gattellari. For example Safetli says "And to be honest with you, like, if I treat this like a fucking business, I'm not going to lie to you. The only way I can treat this like a business, that motherfucker, right on the top, he has to look me in the face, say he'll look after my family. I can't take anybody else's word." (Exhibit AG2 p6). Later he says "So you're trying to tell me, I can't get any guarantee from him, you're telling me you're even protecting him now and you won't look after me." (Exhibit AG2 p12).

The applicant submitted that Gattellari's evidence of his participation in arrangements to intimidate the deceased's wife was otherwise unsupported by other evidence. The applicant then set out the following propositions which, he submitted, placed Gattellari's version of events in doubt: 1. Gattellari claimed that on 30 July 2010, Matthew Crockett drove him to the applicant's office in Leichhardt where the applicant gave him $100,000 in cash in a bag. Gattellari testified that Crockett asked him what was in the bag at which point he showed Crockett the money and explained that there was $100,000 in it. Crockett on the other hand gave no evidence of seeing a bag, or asking to see a bag, with $100,000 cash in it, nor, of an occasion when he drove Gattellari to the applicant's office; 2. Gattellari claimed that intercepts (between 30 July 2010 and 2 August 2010) supported his account that he collected the money from the applicant on 30 July in the company of Crockett but the prosecution did not adduce any intercept evidence capable of establishing that the two men were in each other's company at this time or of any arrangements made for Crockett to drive Gattellari to collect anything from the applicant's office; 3. Gattellari claimed that the Safetlis (that is, both brothers) were to receive the monies yet there was no explanation on the evidence as to why Bassam Safetli was to receive any payment for the intimidation, there being no evidence of his involvement in the intimidation; 4. Gattellari claimed that Kaminic had told him that Haissam Safetli had been paid $50,000 before 2 August 2010, evidence which did not arise on Kaminic's account and did not explain why the two men had to meet on 5 August at Gattellari's suggestion; 5. the Crown Prosecutor played Kaminic a telephone intercept of 5 August 2010 at 2:06pm and in response to a leading question from the prosecutor Kaminic testified that "most probably" Gattellari told him of the timing of the message to the deceased's wife in this call. Kaminic had by this point in his evidence testified that Gattellari had told him that a message to the deceased's wife should be delivered whilst he and the applicant were in China. Kaminic gave no evidence as to when this particular request was made, however, claimed that he passed this information on to Safetli. Kaminic did not support Gattellari's account that it was he, Kaminic, who had informed Gattellari, before such time as Gattellari spoke with the applicant on 4 August 2009, as to the details attaching to the date and time of the intimidation; 6. the inadequate state of the evidence as to when the intimidation was arranged, was capable of resolution on the Crown case by adducing evidence from Haissam Safetli and/or Witness A. The latter was at all relevant times a registered informant assisting the investigation into the plans for the intimidation. The Crown chose not to call Witness A to prove, for example, that the arrangements for the intimidation were consistent with Gattellari's account that he and the applicant set up an alibi. The Crown placed significant weight upon the 4 August 2010 conversation between Gattellari and the applicant as constituting knowledge on the applicant's part of the intimidation. This evidence was relied upon by the Crown, and left by the trial judge, as capable of proving the murder yet the conversation did not support in its terms the applicant's involvement in the need to create an alibi for 8 August. If this was the purpose of the call, on Gattellari's account, Gattellari would have been counselling the applicant to leave before 8 August and not afterwards; and 7. the Crown hypothesis only sat with the evidence if the original plans for the intimidation changed so as to accommodate the applicant's expressed desire to leave earlier. There was simply no evidence of this, and such a change was, no doubt, reliably within the knowledge of Safetli and Witness A neither of whom were called to prove a critical fact left as capable of proving guilt in respect of both counts on the indictment.

In the course of Kaminic's evidence in chief, the Prosecutor adduced evidence of a meeting at Gattellari's house at Chipping Norton. In cross-examination it was established that the meeting allegedly took place "about the day of his birthday", that is 3 February 2009. The meeting occurred after an occasion when Kaminic believed the applicant and Mr McGurk had a court case against each other. Hoeben CJ at CL has explained the applicant's interest in that court case even though he was not a party to the proceedings. [4] There was general agreement that the conversation occurred, if it occurred at all, in early February of 2009. That was before the prosecution alleged that the applicant was part of, or formed, a joint criminal enterprise to murder McGurk. Kaminic gave evidence through an interpreter and his evidence was interpreted as follows: "CROWN PROSECUTOR WRIGHT Q. Mr Kaminic, some time after the day you went to the courthouse for Mr Medich's court case, was there a meeting between you and Haissam Safetli, Bassam Safetli and Lucky Gattellari? A. INTERPRETER: Yes. Q. Was that at Mr Gattellari's house? A. INTERPRETER: Yes. Q. Was there a discussion at that meeting about Michael McGurk? A. INTERPRETER: Yes. Q. Did Mr Gattellari ask Haissam and Bassam Safetli to do something in relation to Michael McGurk? A. INTERPRETER: Yes. Q. What did he ask them to do? A. INTERPRETER: To follow him and to know where he's moving around. Q. Did he ask them to do anything in relation to getting photos? A. INTERPRETER: Yes. Q. Did Mr Gattellari tell you who that following or surveillance would be for? A. INTERPRETER: Yes. Q. Who did he say it was for? A. INTERPRETER: Yes, he said that he would notify Medich to let him know about his movements. Q. Being Mr McGurk's movements? A. INTERPRETER: Yes. Yes. Q. How soon after the time at the courthouse was that meeting? A. INTERPRETER: I can't remember exactly, perhaps a couple of days. Q. Did Haissam Safetli arrive at that meeting at Mr Gattellari's house carrying a newspaper? A. INTERPRETER: Yes. Q. What did you see in relation to that newspaper? A. INTERPRETER: Oh, on one part it was McGurk's photo. Q. At the meeting when Mr 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. INTERPRETER: Yes. Q. When he said, 'This guy's causing you a lot of trouble', who did you understand him to be referring to? A. INTERPRETER: McGurk. Q. When he said that, did you or Lucky Gattellari respond to him? A. INTERPRETER: Lucky asked him, 'What do you think like that?' TERRACINI: I'm sorry? CROWN PROSECUTOR WRIGHT Q. 'Why do you think like that'? A. INTERPRETER: Yes. Q. Did you say anything? How did you respond? A. INTERPRETER: 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?'"

On Monday 26 February 2018, Kaminic was cross-examined as follows: "Q. As we move forward down the years after you've introduced them to Gattellari, why did you tell Gattellari that they were capable of committing a murder? CROWN PROSECUTOR WRIGHT: I object, your Honour. HIS HONOUR: Just a moment. CROWN PROSECUTOR WRIGHT: He hasn't given evidence that he has told Gattellari that. HIS HONOUR: That's right, Mr Terracini. TERRACINI: We can go back. Q. You told Gattellari that the Safetlis were able to do a murder job, didn't you? A. INTERPRETER: No. Q. All right. A. INTERPRETER: I never said. Q. When did Gattellari speak to you about finding someone to kill Mr McGurk? A. INTERPRETER: Yes, Hais offered his services by himself. Q. Yes. Safetli said to Gattellari, in your presence, that's Hais Safetli, said in your presence, 'This fellow's causing you a lot of problems, you should kill him', didn't he? A. INTERPRETER: Yes, approximately like that. Q. Mr Medich wasn't present at any conference like that, was he? A. INTERPRETER: No. Q. Your birthday is around about 3 February; is that so? A. INTERPRETER: Yes. Q. Precisely what is it? A. INTERPRETER: 7th. 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. INTERPRETER: Yes. Q. A photograph was shown by Hais Safetli to Gattellari pointing to Mr McGurk's image in the newspaper; true? A. INTERPRETER: 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. INTERPRETER: Yes, approximately like that. Q. The persons present at Chipping Norton in early February, when this was discussed, are Gattellari, yourself, Hais Safetli and Bassam Safetli; is that true? A. INTERPRETER: Yes. Yes. Q. Do you remember Hais Safetli also saying, speaking to Gattellari, 'This fellow's causing you a lot of problems'? A. INTERPRETER: Yes, no-one else was there except us. Q. Have a look at this document, sir, page 6 of your induced statement, paragraph 35. HIS HONOUR: That's the same statement of 30 November? TERRACINI: Yes, your Honour, yes. HIS HONOUR: I'm sorry, paragraph? TERRACINI: Paragraph 35. HIS HONOUR Q. Just read paragraph 35 to yourself with the interpreter's assistance and let me know when you've done that, please. A. INTERPRETER: Yes. TERRACINI Q. Is that all true? A. INTERPRETER: Yes. Q. And you told the police of that conversation way back in November 2010; correct? A. INTERPRETER: Yes. Q. And it reads: 'Hais showed Lucky the article in the newspaper and said something like, 'This man is causing you a lot of trouble.' Lucky said, 'What do you mean?' Hais said, 'He is causing you a lot of problems, you'll have to kill this guy.' Lucky looked really surprised and said, 'Why are you thinking that?' And Hais said, 'You'll find out.'' Was that all correctly read? A. INTERPRETER: Yes. Q. And that was said at Gattellari's home? A. INTERPRETER: Yeah. Yeah. TERRACINI: Might that be marked for identification. HIS HONOUR: Yes. Page 6 of the statement of 30 November 2010 will be MFI 58. MFI #58 PAGE 6 OF STATEMENT DATED 30/11/2010 TERRACINI Q. Have a look at MFI17 and MFI84. HIS HONOUR: Did you say MFI84? TERRACINI: There's another document on it, your Honour. HIS HONOUR: That's not MFI84 in this case. TERRACINI: He needs to remove it, so that it is not interfered with by me. Just a moment, can you take MFI-- HIS HONOUR: Just hand me the document, please. You're being shown MFI17. Yes, go on, Mr Terracini. TERRACINI Q. Could you take the bulldog clip off at the top so that you can open the newspaper. Have you got it open now. INTERPRETER: Yes, which page? TERRACINI Q. Just keep on going through until you come to the photograph that you recognise. A. INTERPRETER: Yes. Q. Do you see a photograph of Mr McGurk? A. INTERPRETER: Yes. Q. The date of that newspaper is 3 February 2009, is it not? A. INTERPRETER: Yes. Q. That's a photograph, or a copy thereof, that Hais Safetli showed Gattellari in your presence, correct? A. INTERPRETER: Yes. Yes, it can be. TERRACINI: I tender that. HIS HONOUR: Are you tendering the photograph? Precisely what are you tendering? TERRACINI: I will tender the newspaper, because there's a certificate that comes with the newspaper. HIS HONOUR: That doesn't make it admissible - but show it to the Crown -whether it is certified or not. CROWN PROSECUTOR WRIGHT: No objection. HIS HONOUR: You're just tendering the photograph on the date? TERRACINI: Yes. HIS HONOUR: There's a lot of other material next to it, Mr Terracini. TERRACINI: We've just left it intact. HIS HONOUR: I understand that. TERRACINI: That's all we want, the photograph and the date. HIS HONOUR: All right. I'll admit the photograph and the date, but I'll hand the document back to you and you can prepare an edited copy. TERRACINI: Yes, your Honour. HIS HONOUR: Members of the jury, this document will be exhibit 53. I am going to ask counsel to prepare a copy of that part of it that is the tender. The rest of it is irrelevant, but when you receive it in an edited form, you will see that the newspaper or the extract is from the Daily Telegraph newspaper of Tuesday, 3 February 2009. What the witness has identified is the photograph that I am pointing to at the moment and there is no dispute, as I understand it, that that is a photograph of the deceased, Mr McGurk. In due course, that will be exhibit 53. In its present state can it can remain MFI17. I'll hand it back to you, Mr Terracini, and that can be prepared overnight."

The respondent set out a number of pieces of Loren Gattellari's evidence in an attempt to justify this submission. This included: "112. Loren Gattellari's evidence included the following. Firstly, in relation to when he visited his father in custody (shortly after Gattellari was arrested) (T1880/14): 'Q. And did your father ask you whether you had had any contact with Peter Medich? A. He asked me if I still had contact with Peter Medich and I told him that yes, I did. Q. When you told him you still had contact with him, did he ask you to do something? A. He asked me to go and see Peter and relay a message to his father from my dad, yes. Q. To relay a message to his father, you mean to Ron Medich? A. To Ron Medich, yes, from my dad through Peter. Q. And did your father tell what you the message was he wanted relayed? A. The message was that the police were wanting him to implicate Ron Medich in the murder and he was holding back on it and he needed Ron Medich's financial help for his legal defence and that if Ron did not want to help my dad financially with his legal defence then he was not going to do 20 years in gaol and he'd just comply with the police. That was the message.' 113. After visiting Gattellari in custody, Loren Gatellari (sic) then contacted Peter Medich by telephone and arranged to meet with him at a bar in Leichhardt. His evidence about the meeting was as follows (T1881/32-1882): 'Q. When you and Mr Crockett arrived at the bar, did you see Peter Medich? A. We arrived first. I called Pete to say we were there. He said, 'head upstairs.' There's a terrace upstairs. And then we and Matt bought a beer and sat outside and waited. Q. Was there any small talk, or did you raise the message that your father had asked you to pass on? A. When Peter arrived? Q. Yes. A. Yes, I believe we just said hello to each other and stuff and, yes, sat down, but, yes, after that I think I pretty much just got to the point of the meeting. Q. Do you remember what it was that you said to Peter Medich? A. Pretty much how I exactly said it before. I told him that the police are looking for my dad to tell them about his dad's involvement and my dad hasn't been doing that so far. I told him the cost of the legal fees and that my dad's, like, sort of expecting his dad to jump in and help with that and that if he doesn't, then my dad is going to start helping the police with what they want. Q. And did you pass on precisely the amount of legal fees that your father needed? A. Yes, I told him the $1 million amount. Q. What was Peter Medich's response to you telling him that? A. I don't think he was expecting it and -- HIS HONOUR Q. You weren't asked that. What was his response? A. Okay. He just sort of said, well, his response was that he had no contact with his father. He was in Adelaide or something like that, so it was going to be impossible for him to relay the message. And I said, 'well, you're going to have to because, like, my dad is not going to sit in gaol forever waiting for your dad.' So I think I said something along the lines, 'Well, go buy a plane ticket and go talk to him.' CROWN PROSECUTOR HARRIS Q. All right. Was Matthew Crockett participating in the conversation; do you remember? A. No, this is just going back and forth between me and Peter.' 114. In cross-examination, Senior Counsel suggested to Loren Gattelari (sic) that he went to the meeting to try and blackmail Peter Medich (T1901/8 and 1901/29). Loren Gattellari denied this. The terms of the conversation were put to Loren Gattellari by Senior Counsel as follows: 'Q. Did you say to Peter Medich, I've got a message for your father? A. Yes. I explained to him that I needed to let him know-- Q. Sir, the question is did you say, 'I've got a message for your father'? HIS HONOUR: Or words to that effect? A. Yes, words to that effect. I explained that I got a message. TERRACINI Q. Did you say, 'Mate, you've got to tell your father that if he doesn't put a million bucks in dad's lawyer's account by Monday, dad's going to turn on your father and say that he was ordered to kill McGurk.' Did you say that? A. I did not say those words or in that tone. I didn't. Q. Did you say anything like that? A. Yes, I explained to him my dad's situation and how my dad was looking at - to fight this murder charges was going to be around $1 million and that his dad is the one the police are hassling, that they actually want, so if his dad wants my dad to not bring him up he's going to have to come and help my dad financially. And that was the basis of the message. Q. So you said to him that if the money wasn't put into the solicitor's account, dad's going to turn on him, meaning Mr Medich, and say he was ordered to kill McGurk, didn't you? A. I did not say those words, no. I said words to that effect. I said that my dad would start complying with the police. I did not say in the words that you're putting. Q. Did you also, I suggest to you, say this: 'Where is he?' Meaning Mr Medich Senior, and Peter Medich says, 'He's in Adelaide. I don't even know whether he's on a plane,' or words like that? A. I believe after I said my message, Peter said something to the effect that, 'You can't contact my dad.' And then I questioned, 'What do you mean, you can't?' And he goes, 'You can't call him. He's in Adelaide or something like that. It's impossible for him to be contacted.' And I said, 'Well, mate, you're going to have to buy a plane ticket or something because things are moving pretty quickly and, like, your dad really needs to get on board with this'. Q. Sir, in addition, to the reference to the city of Adelaide, did he say that he didn't know whether he was on a plane? HIS HONOUR: So Peter Medich said he didn't know whether his father was on a plane? TERRACINI: Yes. HIS HONOUR Q. Do you remember that being said? A. No, I just remembered him mentioning he was in South Australia or something like that. TERRACINI Q. All right. I suggest to you that after you made this request of Peter Medich, did he say to you, 'It looks like you're trying to blackmail my old man'? Did he say that? A. The word blackmail was never mentioned. Q. How long do you think the conversation that you had with Peter Medich went for? A. It was quite brief. Maybe under 10 minutes or thereabouts."

The respondent submitted that because the trial was conducted in this way, the evidence that is subject to this ground of appeal (at [884]) was admissible in proof of both counts on the indictment. Large parts of the evidence were admissible in relation to Count 1 because they were able to establish the applicant's strong motivation to recover the money and property that he believed was acquired wrongfully from him by the deceased (and held by McGurk's estate after the murder). The jury was entitled to consider that, if the accused had that motivation in mid-2010, he may have had that same motive in the earlier period leading up to McGurk's murder in 2009. According to authority in this Court, that was not evidence of a tendency to have a particular state of mind; rather, it was evidence of him in fact having that state of mind. [23] Similarly, some of the recorded conversations - including, and in particular, the reference to "fucking her off like McGurk", whether that be a reference to the applicant's wife or Mrs McGurk [24] - were able to be used by the jury as evidence of a consciousness of guilt in relation to the murder of McGurk. While not entirely analogous to the circumstances of Elomar and Ors v R, the same general principles applied. [25] In that case, the Court said: "364. It is one thing to say that a series of acts of a person can establish a tendency to act in a particular way. That makes perfect sense. Common examples are to be found in cases of alleged sexual abuse of children. That an accused person is shown to have abused one child (or a number of children) may be held to establish a tendency to act in a particular way. (From that, it may then be inferred that, on an occasion relevant to the proceedings, that person acted in conformity with that tendency.) 365. It may also be said, in appropriate circumstances, that a series of incidents is capable of giving rise to an inference that a person had a tendency to have a particular state of mind. Common examples again are to be found in cases of alleged sexual abuse of children. It may readily be said that the accused person has a tendency to be attracted to children. (From that, it may then be inferred that, on an occasion in question in the proceedings that person acted in a way alleged, or did so with the relevant state of mind.) 366. A state of mind, unlike conduct, is not necessarily a series of intermittent events, feelings or ideas. Commonly, a state of mind is continuous. Belief in a deity, opposition to capital punishment, support for a political philosophy are all states of mind. It would not be in accord with ordinary human experience or language to describe a person who held such beliefs as having a "tendency" to have the relevant state of mind. Rather, the person is said to have that state of mind. Proof of a state of mind may be direct, not indirect. In appropriate circumstances, it does not depend upon tendency reasoning. 367. Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person's mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference). It is therefore necessary to ask whether the evidence of Moustafa Cheikho's attendance at the LeT camp was evidence of a tendency on his part to support violent Islamic Jihad, from which the Crown would seek to have drawn an inference either (i) that he entered into the agreement alleged intentionally; or (ii) that he intended that a terrorist act would be committed in Australia. If that were the basis on which the Crown tendered the evidence, it would come within s 97 of the Evidence Act and the tests imposed by s 97 and s 101 would have to be applied. Alternatively, did the Crown seek to prove that Moustafa Cheikho in fact supported violent Islamic Jihad, from which, similarly, the Crown would seek to have drawn an inference that he entered the agreement alleged intentionally, or intended that a terrorist act would be committed in Australia? The former involves tendency reasoning; the latter does not. 368. The most powerful argument in support of the former proposition is the gap in time between Moustafa Cheikho's attendance at the camp, and the commencement of the alleged conspiracy. But that does not conclude the issue. Proof that a person held a particular belief on one occasion does not prove that he had a tendency to have that belief. It proves that, on that occasion, he did have that belief. There is no reason to think that, if Moustafa Cheikho had a state of mind that supported violent Islamic Jihad in 2001-2002, he did not continue to have that state of mind up to and including the time of the alleged conspiracy. 369. If it could reasonably be inferred from the evidence of his attendance at the camp, and the nature of the camp, that he had a state of mind that favoured militant Islamic Jihad, it may equally be reasonably inferred that he continued to have that state of mind up to and beyond 2004. That is not tendency evidence and does not give rise to tendency reasoning."

In the present case, the jury was directed to consider each count separately and was also directed that it should take an acquittal on one count into account in relation to the other. However, there was no risk in this case that an "anti-tendency" direction would suggest a forbidden process of reasoning that the jury would find persuasive. So much is clear from the directions relating to the evidence of the relationship between the applicant and Gattellari. Those directions made it clear to the jury the way in which the evidence could be used and cautioned the jury against using the evidence for a tendency purpose. The jury was directed as follows: "You must not use it [that is, the evidence of the debt collection, the surveillance and the other evidence of the association between the applicant and Gattellari] for any other purpose and, in particular, you must not, under any circumstances, use that evidence to reason that because the accused behaved in a certain way on a particular occasion, if you find that he did, that he must have behaved in that same way on some other occasion, or, in particular, must have behaved in some way on the occasion or occasions which give rise to the charges against him. You cannot use the evidence in that way; it can only be used for the limited purpose that I have outlined to you. In particular, members of the jury, you must not use this relationship evidence to reason that the accused is the type of person who would commit either of the offences with which he has been charged. You cannot punish the accused for other conduct which is attributed to him by finding him guilty of the charges in the indictment. That is not the Crown's argument. To reason in that way would be contrary to every direction that I have given you, and every direction that I will give you, in the course of this summing up. You must not use this relationship evidence, in any way other than the way in which I have outlined to you, bearing in mind the limited purpose for which the Crown has put it before you. I repeat, you cannot reason that just because the accused, if you find that he did, may have behaved in a particular way on some occasions in the past, such as, for example, arranging surveillance of his wife, if you find that he did and if you are satisfied about what Gattellari says about that, you cannot use that to reason that he must have behaved in some other way on another occasion, in particular, on the occasions which lead up to the alleged commission of these two offences." [30]

In Kalbasi v Western Australia, Kiefel CJ, Bell, Keane and Gordon JJ rejected a submission that Weiss should be "qualified or overruled". Their Honours referred to "the notorious difficulties associated with the 'lost chance of acquittal' formulation". As to the application of Weiss v The Queen their Honours said: "15. Contrary to the appellant's submission, Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of 'process' and 'outcome' may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter. 16. The appellant's invitation to elaborate on the categories of case in which satisfaction of the negative condition will not suffice to enliven the proviso is to be resisted. It is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt. As was established in Weiss, the fundamental question remains whether there has been a substantial miscarriage of justice. That question is not answered by trying to identify some classes of case in which the proviso can be or cannot be applied. Classifications of that kind are distracting and apt to mislead."

Kaminic was then asked questions concerning reporting the surveillance of the deceased to the applicant. He gave this evidence: "Q. Did Lucky Gattellari tell Mr Medich in your presence that Mr McGurk was going to be watched or followed? A. INTERPRETER: Yes. I said that he will be followed and they will know where and what. Q. Did you hear Mr Medich say anything back to Lucky Gattellari about the fact that Mr McGurk would be followed? A. INTERPRETER: Perhaps, yes, but I can't remember specifically anything. Q. Did you ever hear Mr Gattellari say anything to Mr Medich about photographs of Mr McGurk? A. INTERPRETER: Yes, I think he told him he will get photos and - just that it will be presented, that they are doing something, and he would know about his movements. Q. Were there some meetings when Haissam and Bassam Safetli reported on the surveillance back to Lucky Gattellari? A. INTERPRETER: Yes. Q. Were you present at such meetings? A. INTERPRETER: Yes. Q. At one of the meetings did Haissam Safetli say to Lucky Gattellari words to the effect, 'If you want to go all the way with this, we can'? A. INTERPRETER: Yes. Q. How did Lucky respond? A. INTERPRETER: Lucky didn't know what he's talking about and he said, 'What do you mean?' Q. Did Haissam Safetli reply to that question? A. INTERPRETER: Yes. Q. What did he say? A. INTERPRETER: He showed with his finger and he said, 'If you want to go all the way'. HIS HONOUR: Indicating with the index finger pointed out. … Q. Where was that meeting? A. INTERPRETER: At Lucky's house. Q. At another meeting did you see the Safetlis give Lucky Gattellari something in relation to the surveillance of Mr McGurk? A. INTERPRETER: Yes, I think he brought some printouts of photos and once he wrote - second meeting he wrote CDs. Q. At a further meeting he brought a CD to Mr Gattellari? A. INTERPRETER: Yes, second meeting, yes. Q. Where was the meeting where he gave Mr Gattellari a CD? A. INTERPRETER: We were at lunch at Milano Restaurant. Q. What did you understand the CD to be? A. INTERPRETER: They said surveillance photos. Q. What did you understand the CD to be before? A. INTERPRETER: Yes, that Lucky can justify to show Ron and justify his payments for Safetli brothers. Q. How long after Lucky had first asked them to do the surveillance of Michael McGurk was that CD handed over? A. INTERPRETER: I don't know. Three to four weeks, I'm not one hundred per cent sure. Firstly, it was photos, 15 days later on that came, yes - 10 to 15 days, yes, that came. So approximately within that time. I don't know exactly."

Kaminic was then examined on a meeting in which he was partly involved some two weeks after the handing over of the CDs. He gave the following evidence: "Q. Did they appear to be conferring privately with each other? A. INTERPRETER: Yes. They went to Ron's office, I was waiting in front of the reception. Q. How long were they speaking between themselves? A. INTERPRETER: I don't know, but minimum 15 to 20 minutes. Q. At the conclusion of the conversation did you leave the accused's Leichhardt office with Mr Gattellari? A. INTERPRETER: Yes. Q. Did you get into a car? A. INTERPRETER: Yes. Q. Did Mr Gatellari say something to you about Mr Medich? A: INTERPRETER: Yes. Q. What did he say? A. INTERPRETER: 'It looks like he's going all the way. Yeah, he wants to go all the way through'. Q. When he said, 'He wants to go all the way through', who did you understand 'he' to be? A. INTERPRETER: I think that Hais's suggestion, all the way through, all the way, that was it. Q. Who wanted to go all the way? A. INTERPRETER: Lucky said, 'It seems Ron wants to go all the way.' Q. What did you understand Mr Gattellari to be saying to you about Ron wanting to go all the way? A. INTERPRETER: Yes, they wanted to get rid of Mr McGurk, that he was indicating with his index finger. Yes, that was my understanding. Q. Did you understand that Ron wanted to get rick of McGurk in the sense he wanted him killed? A. INTERPRETER: Yes, that was in his head, 'all the way', to kill him. Q. Did you say anything in reply to Mr Gattellari? A. INTERPRETER: Yeah, I asked him, 'What's going on, what's happening?' Q. What did he say? A. INTERPRETER: He mentioned that McGurk is causing too many problems and at the same time money is missing. Q. When you say 'money is missing', whose money? A. INTERPRETER: Ron's getting money. Q. Did Mr Gattellari say anything else about what the accused wanted him to do? A. INTERPRETER: I can't remember any specific words, but my understanding was that they want him - they wanted to kill him. Q. Did Mr Gattellari ask you to do anything? A. INTERPRETER: Yes. Q. What did he ask you? A. INTERPRETER: Yes, to contact Hais to come for a meeting. Q. Did you do what Mr Gattellari asked - that is, contact Hais Safetli? A. INTERPRETER: Yes. … Q. And did you meet with Hais Safetli at Lucky's house? A. INTERPRETER: Yes. … Q. Yes. At the meeting when Haissam Safetli came to Lucky's house, what did Lucky Gattellari say to Haissam Safetli? A. INTERPRETER: He asked him, 'Are you still to go all the way?' 'Yes, is the offer still on the table?' Q. Is it your evidence that Lucky Gattellari asked Haissam Safetli if his offer to go all the way was still on the table? A. INTERPRETER: On the table, yes. Q. Did Hais Safetli say that yes, it was? A. INTERPRETER: Yes. Q. Did Mr Gattellari ask him, that is, ask Mr Safetli, to tell him what his terms and conditions were? A. INTERPRETER: Yes. Q. Did Haissam Safetli get back to you after that meeting about his terms and conditions? A. INTERPRETER: Yes. Q. What did he say? A. INTERPRETER: He sent me a message with - SMS message with - 50,000 upfront, 250 after finishing the job and within one to three months it will be done. Q. When did he send you that message? A. INTERPRETER: The same night, actually two to three hours after the meeting."

The trial judge rejected the application: R v Medich (No 32) [2018] NSWSC 253. In his judgment, after recording the evidence complained of, the trial judge made the following remarks (at [10]-[15]): "[10] I interpolate that no objection was taken to those questions when they were asked in re-examination. [11] 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.' [12] 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. [13] 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. [14] 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. [15] 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."

Thereafter, pursuant to leave, senior counsel for the applicant further cross-examined Mr Kaminic. The cross-examination was to the following effect: "Q. When did you say to any court or to any police officer before this morning that this comment was directed to Mr Medich? A. INTERPRETER: I never remember saying that. No-one has asked me - ever asked me such direct question." … Q. Can you tell us whether you ever said anything about this conversation being directed to Mr Medich before? A. INTERPRETER: I can't remember. Q. Yesterday afternoon, did you have a conference with the prosecutor, a police officer and a solicitor? A. INTERPRETER: Yes. Q. Is that the very first time in the last seven and a half years that you've ever told any police officer or DPP officer about this conversation, so far as you were concerned, relating to Mr Medich? A. INTERPRETER: As far as I remember, yes. … Q. I suggest to you that you are lying about this conversation, aren't you? HIS HONOUR: About the conversation or about his understanding? TERRACINI Q. You are lying about saying that you understood that this related to Mr Medich? A. INTERPRETER: No. Q. So far as the court problems that you spoke of this morning, a court case, what was that about? A. INTERPRETER: Well, that Mr Medich was at court with McGurk and they knew about it - and Safetlis, they knew about it. Q. About what? A. INTERPRETER: They are at court and they are just - one against each other in relation to some money, and what else I don't know. … Q. When Hais Safetli showed Lucky Gattellari the article in the paper, did he discuss what was in it with Gattellari? A. INTERPRETER: I can't remember that, there was a discussion about. Q. There was, or there wasn't? A. INTERPRETER: No, just he showed with his hand and said, 'This man is causing you a lot of troubles'. Q. There was no conversation about a court case, was there? A. INTERPRETER: At the moment, no, but probably he was - he read the content. Q. Not 'probably'. Did you hear any discussion about the court case? A. INTERPRETER: No, no."

Senior counsel for the applicant made the following additional references to the conversation: "According to Gattellari's account, Gattellari says that he's first approached by the accused in the new office, which doesn't exist, one of the accounts is in April or May, they vary a little bit, before obviously September. Kaminic, before that event, has got Hais Safetli and Bassam Safetli at guess who's house? Gattellari's, with the photograph of Mr McGurk in an article in the Daily Telegraph of 3 February, points to it and says, 'You've got to kill this fellow', or words to the effect. I'll take you to it word for word, and you'll reject out of hand that's any reference to Mr Medich. Mr Medich hasn't, on Gattellari's version, eve asked him to kill anyone. It is Safetli saying to Gattellari, 'You've got to kill this fellow', and points to the photograph and you will see it. There's no doubt who it is, there's no doubt which newspaper it is or the date of it. So far as Mr Kaminic is concerned, he is in no doubt that this event took place, and it is exhibit 53. When Gattellari is confronted with this, he just says, 'Oh, that never happened. That's nonsense. That didn't happen.' Well, he has to say that, doesn't he? If he want[s] you to believe him, he has to, because if Kaminic is telling you the truth, you may think that there are moves afoot already before the alleged conversation with the accused to be discussing the death of Mr McGurk. It is put to you it's nothing to do with Mr Medich. … Mr Kaminic confirmed over and over in his evidence that all of the meetings he was having with Gattellari and the Safetlis involving the identification of the date related to the photograph in the newspaper, which is 3 February 2009, was in close proximity to that date. If that's not enough, that he talks about pointing to the photograph in the newspaper, his own birthday is in the first week of February, and that's another reason why he's able to remember with precision what took place. Gattellari is the only witness that gives evidence - the only witness that gives evidence before you - that it was Ron Medich who requested the murder of Mr McGurk and the intimidation of Mrs McGurk. Gattellari is the only person."