(1980) 147 CLR 75
Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27
(2006) 226 CLR 256
Boulos v R [2008] NSWCCA 119
Dupas v R [2010] HCA 20
(2010) 241 CLR 237
Jago v District Court of NSW [1989] HCA 46
(1989) 168 CLR 23
Lee and anor. v New South Wales Crime Commission [2013] HCA 39
Source
Original judgment source is linked above.
Catchwords
(1980) 147 CLR 75
Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27(2006) 226 CLR 256
Boulos v R [2008] NSWCCA 119
Dupas v R [2010] HCA 20(2010) 241 CLR 237
Jago v District Court of NSW [1989] HCA 46(1989) 168 CLR 23
Lee and anor. v New South Wales Crime Commission [2013] HCA 39(2013) 302 ALR 363
Lee v The Queen [2014] HCA 20(2014) 308 ALR 252
QAAB v Australian Crime Commission [2014] FCA 747
R v CBMP v R [2011] NSWCCA 264R v Edwards [2009] HCA 20(2009) 83 ALJR 717
R v GattellariR v Kaminic [2013] NSWSC 1097
R v Glennon [1992] HCA 16(1992) 173 CLR 592
R v Medich (No. 1) [2014] NSWSC 1013
R v SellerR v McCarthy [2013] NSWCCA 42(2013) 273 FLR 155
R v SellerR v McCarthy [2012] NSWSC 934(2012) 269 FLR 125
R v X [2014] NSWCCA 168
X7 v Australian Crime Commission & Anor [2013] HCA 29(2013) 248 CLR 92
Walton v Gardiner [1993] HCA 77
Judgment (35 paragraphs)
[1]
INDEX
INTRODUCTION [1]
The Crown case [9]
The Defence case [11]
THE EVIDENCE IN THE PRESENT APPLICATION
The establishment of Strike Force Narrunga [12]
Reference of the investigation to the NSW Crime Commission [16]
The Summons issued to the applicant to attend the Commission [17]
The applicant's appearance before the Commission [21]
The presence of the police at the applicant's examination [35]
The debrief following the applicant's evidence [41]
Subsequent discussions about the applicant's evidence [43]
The release of the transcript of the applicant's evidence [48]
The tasks created by Det. Fitzhenry [50]
Access to the transcript of the applicant's evidence by police [59]
The search warrants obtained by Det. Howe [60]
The knowledge of DPP lawyers of the applicant's evidence [65]
The Timeline document [76]
Gattellari's evidence before the Commission [83]
The taking of Gattellari's statements [92]
The charging of the applicant [104]
SUBMISSIONS OF THE PARTIES
Submissions of the applicant [107]
Submissions of the Crown [115]
Submissions of the applicant in reply [123]
CONSIDERATION
The general principles and the applicable test [126]
The presence of the police at the applicant's examination [135]
Discussions between Police [160]
The application for Search Warrants [162]
Gattellari's evidence [163]
The roles of Dets. Groves and Watson in obtaining Gattellari's statements [180]
Knowledge of DPP lawyers of Gattellari's evidence and statements [182]
The applicant's position at trial [184]
A temporary stay of proceedings [185]
ORDERS [186]
[2]
INTRODUCTION
On 1 November 2013 Ronald Edward Medich ("the applicant") pleaded not guilty to an indictment alleging the following:
1. on 3 September 2009, at Cremorne in the State of New South Wales, he did murder Michael McGurk ("the deceased"); and
2. on 8 August 2010, at Cremorne in the State of New South Wales, he did intimidate Kimberley McGurk, with the intention of causing the said Kimberley McGurk to fear physical or mental harm.
The applicant was due to stand trial on 25 August 2014. However, that date was vacated on 25 July 2014: R v Medich (No. 1) [2014] NSWSC 1013.
By notice of motion dated 18 June 2014 the applicant seeks a permanent stay of each of the counts contained in the indictment. That order is opposed by the Crown.
The following affidavits were read in support of the applicant's motion:
1. Timothy William Daley sworn 18 June 2014;
2. Timothy William Daley sworn 26 June 2014; and
3. Timothy William Daley sworn 10 July 2014.
Mr Daley, who is the applicant's solicitor, was not cross-examined.
The following affidavits were read by the Crown:
1. Gina Maree O'Rourke sworn 3 July 2014;
2. Erin Mary Derrig sworn 10 July 2014;
3. Stephanie Louise Lind affirmed 10 July 2014,
4. Georgia Campbell Rowe sworn 10 July 2014;
5. Kathleen Mary Carmody affirmed 10 July 2014;
6. Sharon Lisa Harris sworn 8 July 2014;
7. Richard Michael Howe sworn 10 July 2014;
8. Michael Raymond Sheehy sworn 10 July 2014;
9. Paul Anthony Blanch sworn 10 July 2014;
10. Stephen George King sworn 10 July 2014;
11. Mark Stephen Fitzhenry sworn 9 July 2014;
12. Timothy James O'Connor affirmed 10 July 2014;
13. Fiona Rowbotham sworn 11 July 2014
14. Christopher Francis Groves sworn 15 July 2014; and
15. Bryce Nicholas Watson sworn 15 July 2014.
Of those persons, the following were cross-examined:
1. Ms O'Rourke;
2. Ms Harris;
3. Ms Lind;
4. Det. Howe;
5. Det. Sheehy;
6. Det. Blanch;
7. Det. Fitzhenry;
8. Mr O'Connor;
9. Det. Groves; and
10. Det. Watson.
In addition Mr Pickering SC, the Deputy Director of Public Prosecutions (NSW), gave oral evidence but was not cross-examined.
[3]
The Crown case
Because of the bases on which the present application is brought, it is necessary to set out, in full, the Crown case statement which has been filed in the proceedings:
Death of Michael McGurk
1. At about 6.25 pm on 3 September 2009 the deceased, Michael Loch McGurk, born 26 January 1964, was shot outside his home address at 11 Cranbrook Avenue, Cremorne.
2. At the time he was shot, the deceased had just pulled up outside his home in his vehicle after picking up his 9 year old son (who was seated in the front passenger seat) from a friend's house and collecting a takeaway meal for the family.
3. After turning the car off, leaning back to retrieve the takeaway meal from the backseat and opening the car door he was shot at close range and received a single gunshot wound to the right side of his head which was the direct cause of his death. During the autopsy a .22 projectile was removed from the deceased's skull.
4. The deceased's son ran into the home screaming and alerted family members who performed CPR upon the deceased and this was continued by uniformed police at 6.39 pm who had arrived at the scene. A few minutes later, at 6.43 pm, ambulance personnel arrive and also attempted to revive the deceased but it became apparent he had died.
The Parties to the Murder
5. The deceased was a 44 year old married man who was the father of four children. He was the Director of a company, Bentley Smythe Pty Ltd which was a finance company which operated from Level 9, 95-99 York Street, Sydney. He was involved in property development, short term finance lending and debt-collection. Indeed, he was the director of well over twenty other companies which were mainly linked to short term money lending or development projects.
6. Ronald Medich ('the accused') is a prominent property developer and businessman. During 2006/07 he developed a business relationship with the deceased and they jointly became involved in many business ventures. During late 2008 this relationship soured until early 2009 when the relationship was completely acrimonious and each instigated a number of civil actions in the Federal and Supreme Court against each other claiming they had been respectively wronged. Each party claimed the other owed him a significant amount of money. At the time of the murder most of these matters were still unresolved, ongoing and were costing each party a significant amount of money.
7. Fortunato or 'Lucky' Gattellari ('Gattellari) has known the accused for many years and had a very close business relationship with him. For several years the accused invested significant amounts of money into Gattellari's business ideas or ventures, for example the Boomerang Funeral Fund.
8. Gattellari acquired a number of companies in the electrical business trade on behalf of the accused, for example IC Light. These companies all had financial difficulties and the aim was to acquire them, build them up, activate them and then to publicly list them. All the company shares were transferred into the Riv Group owned by the accused who was the sole director and share holder of this company. Gattellari's role was to oversee the running of these businesses on behalf of the Riv Group. Gattellari was also involved in collecting debts owed to the accused.
9. Senad Kaminic ('Kaminic') met Gattellari in around 2000 when Gattellari was running the Macquarie Function Centre owned by the accused. He became an associate and employee of Gattellari and from September 2008 worked fulltime for Gattellari on wages as his driver and general assistant. He also assisted Gattellari in collecting money owed to the accused.
10. Haissam Safetli ('Safetli') worked at a national accounting firm until May 2009. In around 2001 Kaminic met Safetli in his (Kaminic's) capacity as a debt collector. They stayed in irregular (sic) contact and became friends. Kaminic introduced Safetli to Gattellari. He was a friend and associate of Kaminic and when initially introduced to Gattellari commenced doing surveillance and debt collecting work for him to obtain some extra money.
11. Christopher Estephan ('Estephan') was a nineteen year old man who met Safetli through his friendship with Safetli's nephew, Adam Chahine in late 2008 or early 2009. During 2009 Estephan started visiting Safetli and would regularly socialise with him.
The Relationship between the deceased and the accused and the motives for the Murder:
Overview:
12. The accused met the deceased in approximately 2005 through mutual acquaintances Bob Ell and Richard Vereker.
13. Between June 2007 and June 2008, the accused and the deceased enjoyed a close business relationship. In June 2007 the accused approached the deceased to assist him in relation to a financial agreement he had entered into with Amazing Loans ("Amazing Loans") and in October 2007, the accused and the deceased agreed to both enter into a development opportunity regarding two properties at Mowbray and Gerroa ("Mowbray/Gerroa"). In Christmas 2007, the accused recruited the deceased to assist him in finalizing a loan agreement the accused had entered into with Sally-Ann Tilley and to organise the refinance of her mortgage ("Wolseley Road"). The accused made the deceased his power of attorney in order to create all the necessary documentation required to formalize the agreement in December 2007. The accused trusted the deceased and thought highly of him.
14. By May 2008, the relationship between the accused and the deceased was beginning to sour. In a meeting between the deceased and Paul Mathieson on 29 May 2008 in Honolulu the deceased complained that he was sick of the accused. Around this time the deceased came up with the plan to make a profit (at the accused's expense) out of (a) share deal with Paul Mathieson.
15. Between 28 May 2008 and 17 June 2008, the accused had requested that the deceased return $4.4 million he had transferred to him on 27 May 2008. On 17 June 2008, the deceased transferred $1 million back. The remaining money was not repaid. It is the Crown case that around this time, the accused became suspicious of the deceased. On 14 July 2008, the accused revoked the deceased's Power of Attorney and on 6 August 2008, Odetta Medich also revoked the deceased's Power of Attorney.
16. Around September/October 2008, the deceased met with Tim Alford. The deceased said he was getting annoyed with the accused and there was going to be a fight between him and the accused over outstanding matters. Between September and December 2008 the deceased's secretary Tiffany Boys recorded a number of messages in which she stated that the accused wanted to see the deceased urgently.
17. By 16 December 2008, the accused's solicitors sent a letter to the deceased's solicitors requesting the reassignment of the mortgages secured over 42A Wolsely Road and on 22 December 2008, the accused's accountants sent an email to the accused responding to a request for details of all money paid to the deceased and received from the deceased.
18.On 19 January 2009, the deceased was charged with numerous criminal offences relating to the firebombing of the Tilley residence. The accused provided $100,000 surety on bail. It is the Crown case that the accused provided the surety as a method of keeping tabs on the deceased's movements (and protecting his interests as the mortgages were still in the deceased's name). On 18 February 2009, when the deceased sought to find a substitute for the surety, the accused wrote to the ODPP stating that he did not agree with the replacement of the surety as he had "serious matters with McGurk which need to be dealt with" and did not agree with the deceased leaving the country.[On 20 August 2009 the ODPP following a no bill submission, withdrew these charges and the deceased was discharged.]
19. In February 2009, the relationship between the deceased and the accused had soured significantly. The deceased had demanded money owed to him under the Amazing Loans dispute and on 5 February 2009, the accused told Paul Mathieson that the deceased had conned him in relation to the Amazing Loans Deal.
20. On 6 February 2009, the deceased covertly recorded the accused during a meeting with him at Rob Hugh's Office. The deceased maintained, quite publicly, that he possessed a recording between himself and the accused which would grossly implicate the Government in corrupt deals with the accused over the proposed development at Badgerys Creek.
21. By late February/early March the deceased met with Graham Richardson and Richard Vereker and played the tape and told them that the accused would need to sit down with his lawyers and try and settle matters otherwise the tape would be played to a court.
22. By March 2009, the relationship between the accused and the deceased was hostile. On 10 March 2009, the accused had received numerous letters of demand from the deceased's solicitors relating to the Amazing Loans Deal/ Mowbray and Gerroa Deal and Wolsely Road Deal. On 12 March 2009, the accused gave a statement to police regarding the firebombing of the Tilley residence in which he stated that the deceased had defrauded him over multiple property transactions and he would be seeking recompense in the court. The accused gave further statements to the police attacking the credit of the deceased on 9 April 2009 and 22 April 2009. On 8 April 2009, Justice Graham dismissed an application for a freezing order filed by the accused against the deceased and ordered the accused to pay the deceased's costs ($100,000).
23. Between March and September 2009, the relationship between the accused and the deceased continued to deteriorate. Throughout this period, the accused and the deceased were involved in a protracted litigation with each other in both the Federal Court and Supreme Court regarding the recovery of millions of dollars the accused believed was extorted from him by the deceased. By August 2009, the deceased was refusing to repay any of the money sought by the accused (approximately $7.5 million and setting aside of the Declarations of Trust dated 20 June 2008) and was seeking that the accused repay him approximately a further $12 million (and 1/3 of the accused's Amazing Loan shares).
The major disputes between the deceased and the accused:
Amazing Loans
24. The accused met Paul Mathieson after he purchased his house at Denham Court. In February 2005, Paul Mathieson started a company called Amazing Loans Pty Ltd, which was subsequently listed on the ASX.
25. On 2 August 2006, the accused agreed to provide a loan facility of $5 million to Amazing Loans (AL) at an interest rate of 14.5%. The accused was also granted options over shares in AL. On 4 August 2006, the accused entered into a further loan facility with AL for $15 million and granted further options over shares in AL. On 20 April 2007, the accused entered into a further loan facility with AL for $5 million.
26. As at 30 June 2007, AL had drawn down $7.5 million of the total loan facility ($25 million) and later becoming $11.5 million by September 2007. Around this time, the relationship between Paul Mathieson and the accused began to sour as the accused did not agree with the way Paul Mathieson was running Amazing Loans and wanted a greater say in the company.
27. In approximately July 2007, the accused had a meeting with the deceased in his Leichhardt office to help him with the "Amazing Loans situation". The accused complained about the way the company was being run, explained the loan facilities he had provided to Amazing Loans and showed the deceased the documentation he had signed securing the loans. Shortly after this in either July or August 2007, the deceased met with the accused in his office in Leichhardt with Tim Alford and David Gurney. The deceased told the accused that the documentation securing the $25 million facility was either not registered or out of date and only $5 million was secured.
28. In September 2007, the deceased attended the accused's office in Leichhardt. The accused told the deceased that he wanted to get the money that he had paid to Amazing Loans to be returned. The deceased offered to assist the accused in recovering the money he had paid to Paul Mathieson and remove him from the guarantee, shares and options in Amazing Loans in exchange for "one third of all the money that is recovered". The accused agreed on the condition that the deceased obtain a benefit for the accused of at least $14 million. The accused said he would pay the deceased from his super fund.
29. Between 19 September 2007 and 25 September 2007, the deceased pressured Paul Mathieson for the purposes of getting the accused out of the $25 million loan facility and the return of his options and shares. On 28 September 2007, AL repaid the accused $11.5 million.
30. On 8 October 2007, the accused assigned the deceased two Fixed and Floating Charges (which secured $5 million and $15 million loan facility respectively) and one Deed of Charge (which secured the final $5 million loan facility). The accused also assigned the deceased all options deeds in AL shares. Following execution of these documents, the deceased instructed Swaab Attorneys to commence legal proceedings in the Supreme Court against AL.
31. On 1 November 2007 Supreme Court Proceedings were instigated against AL by the deceased (on behalf of the accused) (File 5198/2007). On 2 November 2007, an agreement was reached between the accused and AL. This agreement was contained in a document titled "Heads of Agreement" and was signed on 6 November 2007. The significant terms of the agreement were as follows:
a. The accused would loan $15 million to Amazing Loans (Interest 10% and due in 12 months);
b. No further draw downs on the previous $25 million loan facility;
c. Options held by the accused in Amazing Loan (sic) (90 million) were cancelled upon payment to the accused of $2.7 million and a further (25.5, million options) were cancelled upon payment to the accused of $127,000. If shareholder approval for the cancellation of the accused (sic) options was not obtained by AL within 60 days, Mathieson Enterprises would acquire the options for $2.7 million and $127,000 respectively;
d. AL will purchase 28,125,000 shares currently held by the accused in AL via an on-market buy-back for $7,171,875. If an on-market buy-back cannot occur then Mathieson Enterprises would acquire the shares at 25.5 cents per shares;
e. Mathieson Enterprises will transfer 200 million shares in IEG to the accused and the deceased in whatever proportion they notify Mathieson Enterprises;
f. The accused would discontinue the SC Proceedings 5198/2007 on the basis AL pay the accused's costs;
32. After the deceased had brokered the oral agreement with Paul Mathieson on 2 November 2007 he met with the accused in his office in Leichhardt. The deceased told the accused that his 1/3 share of the deal was $15 million ($10 million buy-back, $25 million back from the loan facility and 1/3 of the 200 million shares). According to the deceased, the accused stated that he was happy for the accused (sic) superannuation fund to advance the money.
33. On 25 February 2008, the accused transferred $3.8 million to Control Risks Pty Ltd (a company controlled by the deceased) as partial commission for the deceased's involvement in Amazing Loans.
34. On 27 May 2008 the deceased utilized these monies and discharged two mortgages owed to Bank West by the deceased being $3,205,479 (over 11 Cranbrook Avenue, Cremorne), $362,353 (over 62-64 Edgecliff Road) and $60 000 in the bank's legal costs that he was obligated to pay.
35. On 13 March 2008, Amazing Loans acquired all shares in IEG by issuing shares in AL to all persons holding shares in IEG. As a result, the accused acquired 300 million shares in AL.
36. In May 2008, Paul Mathieson secured a $100 million loan facility through Fortress Investments in New York. On 6 May 2008, AL had repaid the $15 million loan owed to the accused with interest.
37. On 26 May 2008, the deceased flew to Honolulu where Paul Mathieson resided. On 28 May 2008, Paul Mathieson met with the deceased in the foyer of the Moana Surfrider Hotel. During the meeting, the deceased demanded that Paul Mathieson pay $11.5 million to the accused to purchase his shares in AL. During this meeting, the deceased also told Mathieson that he was sick of the accused who was bossing him around and demanding his attendance at meetings on weekends. The relationship with the accused and the deceased was beginning to sour.
38. Over the next few weeks, Paul Mathieson remained in email contact with the deceased regarding the sale of the shares owned by the accused. Between 14 June 2008 and 17 June 2008, Paul Mathieson and the deceased formulated a scheme in which the accused would sell 310 million shares to the deceased for $3.5 million. A "new syndicate" would then purchase 210 million of those shares from the deceased for $3.5 million. The deceased would continue to hold 100 m shares in AL and enter into a pull/call (sic) agreement with the "new syndicate" to sell the shares on 31 December 2008 for approximately $8 million.
39. This deal was kept from the accused and was designed to profit the deceased $8 million. The deceased told Paul Mathieson that if he partook in this deal he would not have to pay any further amounts to the deceased and there would be no further threats directed to him. The deal never eventuated due to the failure of Odetta Medich to execute the share transfer.
40. On 20 June 2008, the deceased and the accused entered into Deed of Agreement regarding the transfer of the shares in AL from the accused to the deceased and the accused executed a share transfer. In July/August 2008, the deceased was informed that Odetta Medich had refused to sign the share transfer. The deceased arranged to meet with the accused in his office in Leichhardt and told him that Mrs Medich's refusal to sign the document had caused $11.5 million damage (as the share price of AL had dropped significantly between 20 June 2008 and August 2008 and Paul Mathieson was refusing to enter into the deal).
41. In February 2009, the deceased met the accused at the offices of Eakin McCaffrey Cox. The deceased told the accused that it was his wife's fault that they had lost $11.5 million and that 1/3 of the money was his. The deceased put the accused on notice that he wanted his money. On 5 February 2009, Paul Mathieson received a phone call from the accused in which he stated that he had been conned by the deceased in relation to the AL Deal. A few hours later, Paul Mathieson rang the deceased and told him about the conversation he had with the accused. This infuriated the deceased . The deceased said he was going to meet with the accused the next day and record his conversation in order "to bring him down".
42. On 10 March 2009, solicitors representing the deceased sent a letter to solicitors representing the accused stating that as a result of the accused's failure to execute the share transfer the deceased had suffered loss and damage. The deceased solicitor's demanded a written undertaking that the accused would not dispose of its assets pending resolution of the dispute, pay stamp duty on the Deed of Agreement and Deed of Trust and transfer the shares.
43. On 9 May 2009, the deceased emailed Paul Mathieson requesting a copy of all correspondence between the accused and himself regarding the sale of AL shares. The deceased told Paul Mathieson to be very careful in terms of what he has and writes (sic) "unless he is getting $11.5 million from you he is in trouble".
44. Paul Mathieson responded on 9 May 2008 stating that he had no direct correspondence with the accused except one phone call where he stated "McGurk will be fixed up!". Paul Mathieson stated that the accused had said he had been conned by the deceased and would be seeking revenge. Paul Mathieson asks (sic) the deceased if he should go to ASIC or the Police "with everything I have on him".
45. On 15 May 2009, Paul Mathieson flew to Auckland to attend a meeting with the accused, Tim Alford and Andrew Howard. During the meeting the accused was quite friendly and stated that he wanted to rectify the Amazing Loans dispute and assist by lending more money on the condition that Paul Mathieson supply a statement against the deceased to police in relation to his criminal charge. Throughout the meeting the accused made a number of comments about the deceased including "I'm going to fix him. Don't worry, he won't be a problem for much longer" and "It doesn't matter when he gets locked up for the firebombing, either way he won't be a problem
46. As at the date of the deceased (sic) murder the deceased was still seeking the payment of his commission for his involvement in the Amazing Loans deal (he claimed $4 million was still owing and 1/3 of the accused's shares in Amazing Loans).
Covert Recording
47. On 6 February 2009, the deceased and the accused meet (sic) at Robert Hugh's Office at the request of the deceased in (sic) the pretense (sic) of a desire to see if they could sort out their differences. The deceased asked the accused if he could record the conversation. The accused believed that this meant writing it down. The deceased taped the conversation without the accused's knowledge.
48. In late February/early March the deceased played the tape to Graham Richardson and David Vereker at a meeting at a Bowling Club. Graham Richardson listened to the tape for several minutes and found it to be inaudible. The deceased told Richardson that the accused would have to sit down with his lawyers and try to settle the matters because if there was no settlement then the tape would have to be played in court and there would be tremendous embarrassment to the State Government. Richardson said "the tape is inaudible and if you want me to recommend to Medich a particular course of action then you will have to get the tape tidied up to the point where it is audible and I can discern what was being said". The deceased undertook to get the tape cleaned up.
Wolseley Road
49. The accused and Odetta Medich purchased 42A Wolseley Road, Point Piper in 2003 for $7,750,000.
50. On 13 October 2004, Ron Medich Properties entered into a Deed with Sally-Ann Tilley regarding the sale and development of 42A Wolseley Rod, Point Piper.
51. The accused sold the land for $12.5 million and provided $7.5 million in vendor finance.
52. On 8 November 2006, Sally Tilley refinanced a $6.5 million loan previously given by NAB by entering into a mortgage with Bank West for $7.5 million. The mortgage was secured over 42A Wolseley Rd, Point Piper. In December 2007 (before the accused went to Hawaii), Adam Tilley approached the accused and told him that he needed money urgently as the banks were threatening to foreclose on the mortgage he had over 42A Wolseley Rd, Point Piper. The accused agreed to provide another $8.7 million.
53. As the accused was going overseas and found dealing with the Tilleys difficult, the deceased offered to organise the transfer of funds and the mortgages. On 14 December 2007, the accused appointed the deceased Power of Attorney over matters revolving around the Tilley development agreements.
54. Between 14 December 2007 and 21 December 2007, the deceased organised the refinance of the Bank West mortgage and tidied up the previously largely undocumented arrangement between the Tilleys and the Medichs (by requiring the Tilleys to enter into two Loan Deeds, a Deed of Acknowledgment and two Deeds of Guarantee). The due date for the loans was 21 June 2008. The deceased registered two mortgages (AD663450P to secure the $7.5 million vendor finance) and (AD663451P to secure the $8,650,000).
55. On 15 May 2008, the accused assigned the Loan Deeds, Deeds of Acknowledgments, Deeds of Guarantee and mortgages over 42A Wolseley Road, Point Piper to the deceased.
56. On 21 June 2008, the Tilley Loan was due. Adam Tilley offered the "first mortgage monies to pay the original debt" to the deceased and he did not accept it. On 24 June 2008, the deceased sent a letter of demand to Sally-Ann Tilley regarding the $8,650,000 due. On the same date, the deceased registered three caveats over properties owned by the Tilleys. The loan was not repaid.
57. On 25 June 2008, the deceased signed two declarations of trust. The deceased declared that he holds (sic) the two mortgages over the Point Piper (and other security documents) on trust for the accused.
Supreme Court Proceedings
58.On 13 August 2008, the deceased (on behalf of RMP) instituted proceedings in the Supreme Court (File 51060/2008) seeking possession and sale of 42A Wolseley Road following non-repayment of the loan. On 9 October 2008, the Tilley's (sic) filed a cross-claim and cross-summons naming the accused and the deceased as the cross-defendants maintaining that the Tilleys entered into an oral agreement with Ron Medich in June 2004 regarding the development of Wolseley Road and that the Deed entered into on 13.10.2004 was to be read subject to this agreement. The deceased told his solicitor Mark Johnson that there was a document in existence which corroborated this defence and that he could give evidence of this communication between the Tilleys and the accused.
59. On 16 December 2008, a letter was sent from the accused's solicitor to the deceased's solicitors requesting the re-assignment of mortgages secured over 42A Wolseley Road back to the accused. On 17 March 2009, RMP filed a cross-summons against the deceased seeking a declaration that he holds the mortgages AD663450P and AD663451P on trust for the accused and Odetta Medich, orders that the trust property be conveyed and orders that equitable compensation and interest be paid. The deceased did not transfer the property.
60. On 8 April 2009, solicitors for the deceased sent a letter to solicitors for the accused requesting that RMP pay all of the deceased's costs incurred to date in the Tilley/Linkshore Proceedings, to pay stamp duty on the Declarations of Trust and to pay the deceased's costs of taking advice in relation to the procedural steps of being removed as a plaintiff from the Tilley proceedings. On 8 May 2009, the deceased filed a Second Cross-Claim against RMP seeking costs for acting in the proceedings and stamp duty on the first and second trust deed.
61. On 13 July 2009, a letter was sent from solicitors for the deceased (to) solicitors for the accused demanding payment of $153,487.63 as money owed to the deceased for "Indemnities under Declarations of Trust". On 16 July 2009, a letter was sent from Clayton Utz to Holman Webb enclosing the cheques as requested.
62. On 22 July 2009, Consent Orders were signed by the accused and the deceased. The accused agreed to indemnify the deceased for any costs, stamp duty etc which had arisen by reason of the proper conduct of the deceased in relation to the "First Trust" ($7.5 million loan) and "Second Trust" ($8.65 million loan) and remove the deceased as a plaintiff in the proceedings. The deceased agreed to transfer the mortgages back.
63. On 10 August 2009, solicitors for the deceased sent the accused's solicitors a bill for $70,228.45 in costs. This figure was disputed between the parties. On 10 December 2009, the accused compromised and paid $68,370 in costs (to the then estate of the deceased).
Mowbray/Gerroa
64. In early October 2007, the deceased approached the accused in relation to two properties which he believed could be purchased cheaply and developed for a substantial profit. The first property was located at Lot 25, Captain Cook Highway, Mowbray (herein after called the "Mowbray Property") and the second property was located at 16 Crooker River Road, Gerroa (herein after called the "Gerroa Property").
65. The deceased and the accused entered into an oral agreement for RMP to purchase both the Mowbray Property and the Gerroa Property. It was agreed that the deceased would arrange for the purchases and receive a benefit for assisting in the purchase.
66. Between 4 October 2007 and 19 December 2007 the deceased requested that the accused transfer $6,030,000 to companies controlled by him for the purpose of purchasing the Mowbray and Gerroa Properties. On 4 October 2007, the accused transferred $138,000; on 11 October 2007 the accused transferred $1,842,000 and on 13 December 2007 the accused transferred $4,050,000.
67. On 30 November 2007, the HSBC mortgage and Freestyle Lending Mortgage secured over the Mowbray Property was transferred to Acett Pty Ltd (a company controlled by the deceased) for $1,678,717. On 21 December 2007, RMP purchased the Mowbray Property from Acett Pty Ltd (a company controlled by the deceased) for $1,420,000. On 20 December 2007, the Gerroa Property was purchased for $2,190,000.
68. On 25 June 2008, the deceased met with the accused and Odetta Medich and asked them to sign two documents relating to the Gerroa and Mowbray Properties. As a result, RMP entered into two Deeds of Trust with Kimberly McGurk. The agreement stated that the accused would hold 50% of both the Gerroa Property and Mowbray Property on trust for Kimberley McGurk. A term of the trust was that the agreement was confidential.
69. The accused states that the deceased showed him the last page of the two documents he was holding and the accused signed the final page. The accused maintains he did not read the remaining pages. The accused states that the deceased misrepresented the Deed of Trust to state that the deceased is entitled to 50% of net profits arising from the development of the properties after all monies outlined have been returned and interest deducted and that if there is a loss, he would be liable to 50% of the loss. The accused said he executed the document as he still trusted the deceased at this stage.
70. On 10 March 2009 Clarke Kann Lawyers (representing Kimberley McGurk) sent a letter of demand seeking that the accused transfer her half-share of the interest in both the Mowbray and Gerroa Properties to Kimberley McGurk by 13 March 2009 and pay stamp duty on the Deeds of Trust. The accused did not transfer the property. On 16 March 2009, Kimberley McGurk lodged a caveat over the Mowbray Property.
Transfer of $4.4 million
71. On 22 May 2008, the accused transferred $4.4 million to Bentley Smythe (a company controlled by the deceased) at the request of the deceased for a supposed financial deal with security over a property in Manly.
72. The accused requested that the money be returned and on 17 June 2008, $1 million was transferred back to the accused from the Bentley Smythe. The remaining $3.4 million has never been returned to the accused as the deceased maintained the monies comprised part of what the accused owed him pursuant to the Amazing Loan deal.
Federal Court Proceedings (NSD 224/2009)
73. On 18 March 2009, RMP instigated Federal Court proceedings against the deceased, Kimberley McGurk and companies controlled by the deceased. RMP sought (and was granted) a Freezing Order over the deceased (and his companies) assets in the sum of $5,631,255.32. RMP sought orders that:
1) Bentley Smythe pay RMP $3.4 million (to account for the difference between the $4.4 million transferred on 22/5/2008 and $1 million returned on 17/6/2008);
2) Control Risks or Acett Pty Ltd pay $2,231,255 to RMP (to account for the difference between what the accused transferred over for the Mowbray and Gerroa Properties and what they actually cost);
3) In the alternative, the deceased personally pay $5,631,255 ($3.4 million plus $2,231,255);
4) Declaration that 11 Cranbrook Avenue be charged in favour of RMP;
5) Damages, Interest and Costs.
74. On 27 March 2009, RMP v Bentley Smythe (NSD 224/2009) was listed before Justice Graham at the Federal Court and leave was granted to file the Affidavit of the deceased (sworn 25/3/2009). The affidavit states that RMP is indebted to him for $8.3 million for the Amazing Loans deal ($7.2 million has already been repaid); that RMP is liable to pay costs incurred by the deceased as trustee in relation to the Point Piper Property and claiming costs in relation to the Supreme Court Proceedings (relating to the Wolseley Road dispute).
75. On 8 April 2009, RMP v Bentley Smythe 2009 FCA 335 was listed before Justice Graham at the Federal Court. Justice Graham dismissed the interlocutory process filed by RMP and ordered RMP to pay the deceased's costs. Costs were assessed at $100,640.05. In his judgement, Justice Graham stated that when the initial freezing order was granted by Jacobson J on 18.3.09 there was material non-disclosure by the accused 'notwithstanding that in an affidavit sworn by Ronald Medich, a director of each of the plaintiffs, on 25 March 2009 he denied that he failed to disclose anything that was materially relevant to the matter.'
76. On 21 June 2009, Kimberely McGurk filed a First Cross-Claim against the accused seeking a declaration that RMP holds 50% of the Gerroa Property and Mowbray Property on trust for her.
77. On 25 August 2009, the deceased filed a Second Cross-Claim against RMP seeking $1,420,000 (Mowbray) ; Damages, costs and interest; Declaration that RMP is liable to indemnify the deceased against any amounts the deceased is obliged to pay in tax. The deceased asserted that he was due $11,666,292 pursuant to the AL deal plus 1/3 of the 300 million AL shares held by the accused. The deceased stated that RMP had already repaid $7.55 million ($3.4 million transferred to Bentley Smythe and $3.8 million transferred on 25 February 2008 and $350,000 50% interest in a boat owned by RMP).
78. As at the date of the murder, the accused was seeking the repayment of at least $7.6 million from the deceased and companies controlled by the deceased ($3.4m from Bentley Smythe, $2.231m by Control Risks Pty Ltd, $1,420 000 by Acett Pty Ltd) and an order setting aside the Declarations of Trust dated 20 June 2008 in which 50% of both Gerroa and Mowbray properties were held by the accused in trust for Kimberley McGurk, equitable compensation for breach of fiduciary duty by the deceased; damages, interest and costs. The accused was incurring substantial legal costs in pursuit of these matters and was required to pay the costs of the deceased in Federal and Supreme Court proceedings.
79. The accused also faced the two cross-claims filed by the deceased and Kimberley McGurk seeking payment by the accused of at least $12 million (with a claim that any money sought by the accused be set-off against this.)
Chronology of all disputes:
Date Event Reference
26/3/03 OM and the accused purchase 42A Wolseley Rd, Point Piper Commercial List Cross-Claim Statement Paragraph [10] (55 Volume 5E)
June 04 Oral agreement entered into between Tilleys and the accused re Wolseley Road. $12.5 million purchase price and the accused provides $7.5 million vendor finance. Commercial List Cross-Claim Statement Paragraph [14] (55 Volume 5E)
13.4.04 Deed entered into between Sally-Ann Tilley and RMP re: Wolsely Road and settlement occurs Deed (88)
02.05 Paul Mathieson founded Amazing Loans Statement of Paul Mathieson 26/2/2010 Paragraph [4]
31/3/06 The accused, Adam Tilley and Damien Reed enter into a Wolsely Rd Partnership for future development. Deed
8/11/06 Sally-Ann Tilley refinances NAB loan to Bankwest for $7.5m Commercial List Cross-Claim Statement Paragraph [43]
2/8/06 The accused provides Amazing Loans with $5 million loan facility. AL grants the accused options over shares in AL Statement of Paul Mathieson dated 26/2/2010 Paragraph [6]
31/8/06 The accused provides Amazing Loans with $15 million loan facility. AL grants the accused further options over AL Statement of Paul Mathieson dated 26/2/2010 Paragraph [7]
20/4/07 The accused provides Amazing Loans with $5 million loan facility. AL grants the accused further options over AL Statement of Paul Mathieson dated 26/2/2010 Paragraph [7].
07/07 The accused enlists the deceased to assist him deal with AL. Affidavit of Michael McGurk dated 25/3/2010 Paragraph [10]
09/07 The deceased agrees to assist the accused get out of the loan facility, remove him for the shares, options and guarantee in exchange for 1/3 of all money obtained over $14 million Affidavit of Michael McGurk dated 25/3/2010 Paragraph [18]
19/9/07 The deceased sends letter to the accused titled "Terms of Engagement" confirming his services.
25/9/07 Paul Mathieson sends email to the accused stating that he cannot believe he would send Mike around to threaten him. Email from PM to the accused(Email File "Amazing Deal")
28/9/07 AL repays RMP $11.5 million. Defence to Second Cross-Claim Paragraph [54]
10/07 The deceased approached the accused in relation to two development opportunities in Mowbray and Gerroa. The accused and the deceased reach an oral agreement. Affidavit of Ron Medich 18/3/2009 Paragraph [8]; Letter from Clayton Utz to Clarke Kann Laywers (sic)
4/10/07 The deceased sent a letter to the accused referring to a "discussion yesterday" and confirming he would acquire the mortgages over Mowbray. Letter from the deceased to the accused
4/10/07 The accused transfers $138,000 to the deceased at his request for Mowbray/Gerroa Development Affidavit of the accused dated 18/3/2009 Paragraph [11]; Cheque Account Statement Captain Cook Trust Account.
11/10/07 The accused transfers $1,842,000 to Krugdem Pty Ltd at the deceased request for Mowbray/Gerroa Development Affidavit of the accused dated 18/3/2009 Paragraph [13]; Cheque Account Captain Cook Trust Account.
8/10/07 The accused assigns to the deceased all loan documents (for the $25 million loan facility to Amazing Loans) Deed of Assignment
11/10/07 The accused assigns to the deceased all options over shares in AL Call Option Deed
12/10/07 The accused grants the deceased a further call option to purchase 100m shares in AL for $8.8 million with consideration for exercising the call option as $1. Call Option Deed
1/11/07 Supreme Court Proceedings for AL Dispute first mention date. Adjourned to 6/11/07 on basis AL provided undertaking pay all money, Email from Terry Sperber to the accused and the deceased.
2/11/07 Agreement reached between Paul Mathieson and the deceased re AL dispute. The deceased tells the accused entitled to 1/3 being $15 million. Email from the deceased to Paul Mathieson ; Affidavit of the deceased dated 25/3/2009 Paragraph [32]
6/11/07 Mathieson Heads of Agreement entered into. Heads of Agreement
16/11/07 Mathieson Heads of Agreement varied Deed of Variation to Heads of Agreement (1); Deed of Variation to Heads of Agreement (2).
30/11/07 HSCB Mortgage and Freestyle Mortgage secured over Mowbray Property transferred to Acett Pty Ltd Transfer
13/12/07 The accused transfers $4,050,000 to Control Risks Pty Ltd at the request of the deceased re Mowbray/Gerroa development. Affidavit of the accused dated 18/3/2009 Paragraph [18]; Citi Smith Barney Statement from RMP Superannuation Fund
12/07 The accused agrees to loan Adam Tilley $8.7 million Affidavit of the accused dated 18/3/2009 Paragraph [10];
14/12/07 The deceased offers to organise the mortgages and tidy up financial documents. The accuseds (sic) appoints the deceased Power of Attorney (operative until 13/12/07) Commercial Cross-Claim Statement Paragraph [56]-[58]
20/12/07 Purchase of Gerroa Property completed. Purchase price is $2,190,000. Contract for Sale for Gerroa
20/12/07 The accused deposits $713,810.49 into CRI Suncorp Account with note "Part Payment of Tilley Loan" Email from Adam Phillips to the accused dated 22/12/2008
21/12/07 Purchase for Mowbray completed. Purchase price is $1,420,000. The vendor is Acett Pty Ltd. Letter from Hickey Lawyers to the accused dated 3/01/2008 (1906)
21/12/07 The accused deposits $7,936,188.89 into CRI Suncorp Account with note "Part Payment of Tilley Loan" Email from Adam Phillips to the accused dated 22/12/2008
21/12/07 Mortgage AD663450P executed between Sally-Ann Tilley and the accused/OM as mortgagor to secure $7.5 million vendor finance Copy of mortgage (
21/12/07 Mortgage AD663451P executed between Sally-Ann Tilley and the accused/OM as mortgagor to secure $8,650,000 loan. Statement of Mark Johnson (attaching letter dated 7/12/2009) Paragraph [8]
21/12/07 The accused /OM (signed by the deceased as Power of Attorney) and Sally-Ann Tilley enter into a Loan Deed, two Deeds of Guarantee, Deed of Acknowledgment re: loans over 42A Wolseley Rd Statement of Mark Johnson (attaching letter dated 7/12/2009) Paragraph [8]
25/2/08 RMP transfers $3.8 million to Control Risks Pty Ltd Funds Transfer Application ; RMP Cheque Account Statement; Control Risks International Ltd Statement
19/3/08 The accused gives Power of Attorney to the deceased.
31/3/08 Amazing Loans acquired all shares in IEG by issuing shares in AL to all persons in IEG. RMP acquires 300m shares in AL Second Cross-Claim filed on behalf of the deceased Paragraph [22]
6/5/08 Paul Mathieson repays $15 million loan to RMP with interest. Second Cross-Claim filed on behalf of the deceased Paragraph [27]
15/5/08 The accused assigned the deceased (1) Deed of Loan, Mortgage and Guarantee relating to $7.5 million vendor finance (2) Deed of Loan, Mortgage and guarantee relating to $8,650,000 (3) Deed of Acknowledgment. Amended Commercial List Statement Paragraph [10]; Deed of Assignment Commercial List Cross-Claim Statement Paragraph [76]
21/5/08 The accused transferred $4.4 million to the deceased. CBA Funds Transfer Application; Cheque Account Statement RMP.
25/5/08 The accused has conversation with the deceased requesting return of the $4.4 million. Affidavit of the accused dated 18/3/2009 Paragraph [34]
27/5/08 The deceased discharges two mortgages with Bank West ($3,204,479.81; $362,563.35; $60,000") Control Risks Suncorp Bank Statement
29/5/08 Paul Mathieson and the deceased meet in Honolulu. The deceased demands Paul Mathieson pay $11.5 m to the accused for the AL shares. Statement of Paul Mathieson dated 26/2/2010 Paragraph [21]
14/6/08 Paul Mathieson emails the deceased regarding a "deal" of how to sell the shares and make a profit to the deceased . Email from Paul Mathieson to the deceased
17/6/08 Paul Mathieson emails the deceased telling him to keep the deal confidential and not to tell the accused Email from Paul Mathieson to the deceased
17/6/08 The deceased transfers back $1million to RMP Cheuqe (sic) Account Statement RMP (Captain Cook Trust Account
20/6/08 The deceased and the accused enter into a Deed of Agreement regarding the transfer of shares held by the accused in AL to the deceased. Deed of Agreement
20/6/08 RMP executes the share transfer Second Cross-Claim filed by RMP Paragraph [48]
20/6/08 Tilley Loan is due and not repaid. Adam Tilley offered the deceased the first mortgage money to pay the original debt but the deceased does not accept. Statement of Adam Tilley dated 20/11/2008 Paragraph [8]
24/6/08 The deceased sends written letter of demand to Sally-Ann Tilley for $8,650,000 Notice of Demand; Amended Commercial List Statement Paragraph [19]
25/6/08 RMP enters into two Deeds of Trust with Kimberely McGurk re the Mowbray and Gerroa Properties (RMP holds 50% both properties on trust for Kimberely McGurk) Deed of Trust Gerroa Deed of Trust Mowbray
Approx 27/6/08 The deceased lodges caveats over any real property in which the Tilley's have an interest. Affidavit of the deceased dated 25/8/2008 Paragraph [22]
Around 7/7/2008 Odetta Medich refuses to sign the transfer of shares from RMP to the deceased. Affidavit of the deceased dated 25/3/2009 Paragraph [58]
14/7/08 RMP revokes the deceased's Power of Attorney Revocation of Power of Attorney
July/Aug The deceased has meeting in the accused's office and tells him that the refusal of his wife to sign transfer has caused $11.5 million in damages. Affidavit of the deceased dated 25/3/2009 Paragraph [61]
2008
August 2008 The deceased and RMP that agree that the deceased would acquire 50% interest in a boat owned by RMP called the Flying Pegasus Second Cross-Claim filed by the deceased Paragraph [33]
6/8/2008 Odetta Medich revokes the deceaed's (sic) Power of Attorney Revocation of Power of Attorney
8/8/2008 The deceased sent a letter of demand to Tilley for $9 million. The money was not received. Amended Commercial List Statement Paragraph [23]; Affidavit of the deceased 25/8/2009 Paragraph [20]
13/08/08 The deceased (on behalf of RMP) institutes proceedings in the Supreme Court regarding the Tilley Loan Commercial List Cross-Claim Statement Paragraph [85]
9/10/08 The Tilley's file a cross-claim and cross-summons naming the accused and the deceased as cross-accuseds (sic). Cross-Claim Statement (55) Cross-Summons
7/11/08 The Supreme Court matter is listed before Bergin J, Bergin J orders the caveat over the Tilley properties be extended until further order of the court.
Nov-Dec The deceased meets with Tim Alford at York Street café. Tim Alford tells the deceased that the accused is not going to pay him a fee for pursuing the Tilley debts. The deceased says "we'll see about that" Statement of Tim Alford dated 2/4/2009 Paragraph [15]
20/11/08 Tilley residence is firebombed Statement of Adam Tilley dated 20/11/2008
16/12/08 Letter is sent from the accused's solicitors to the deceased requesting re-assignment of Wolesely (sic) Road mortgages
22/12/08 Email sent from Adam Phillips of PF Fisher & Co to the accused regarding his inquiry about all money given to, and received from the deceased. Email from Adam Philips to the accused
19/01/09 The deceased is charged with the Tilley firebombing (3 counts of damage property by fire, 2 counts of common assault and one account of AOABH) Statement of Detective Senior Constable Heatherington
20/1/09 The accused provided the deceased with $100,000 surety on bail Bail undertaking by the accused for surety
Late January 2009 Linkshore, Fernsha and Adam Tilley commenced urgent proceedings in the Supreme Court for the removal of a caveat lodged over property at 62-64 NSW Head Road, Edgecliff. Letter from Mark Johnson to Clayton Utz dated 13/7/2009
Early February 09 The deceased meets the accused at offices of Eakin McCaffrey Cox. The deceased says it is his (the accused's) fault his wife lost $11.5. The deceased makes demand for his share of that money. Affidavit of the deceased dated 25/3/2009 Paragraph [65]
3/02/09 Justice Bergin made orders (in respect of Linkshore Proceedings) making orders in accordance with short minutes of orders. Letter from Mark Johnson to Clayton Utz dated 13/7/2009
5/02/09 Paul Mathieson receives phone call from the accused re: being conned by the deceased in regards to AL. Paul Mathieson rings the deceased. The deceased is furious. Statement of Paul Mathieson dated 26/2/2010 Paragraph [30]
6/02/09 Covert recording of conversation between the deceased and the accused in Rob Hugh's Office
6/02/09 Justice Bergin (Linkshore Proceedings) made orders that plaintiffs pay costs of the deceased. Letter from Mark Johnson to Clayton Utz dated 13/7/2009
18/2/09 The accused writes to DPP stating he does not agree with the deceased finding a substitute surety Letter from the accused to ODPP
18/02/09 The accused and the deceased file separate defences to the Cross-Claim filed by the Tilleys in the Supreme Court. Defence to Cross-Claim (158 Volume 5E); Cross-Claim Response by the deceased.
3-6 March 2009 The deceased meets with Graham Richardson and Richie Vereker and plays them the covert recording Statement of Graham Richardson dated 3/5/2009 Paragraph [5]
10/03/09 Letter of demand sent from the deceased's solicitors to the accused's solicitors re: demanding transfer of shares in AL, payment of stamp duty Letter of Demand
10/03/09 Letter of demand sent from Kimberely McGurk solicitors to the accused's solicitors demanding transfer of her 50% interest in both Mowbray and Gerroa (and payment stamp duty) Letter of Demand
12/03/09 The accused gives a statement to Police about Tilley firebombing implicating the deceased and stating the 3.8million was his commission for his involvement in AL. Statement of the accused dated 12/3/2009.
16/3/09 Kimberely McGurk lodges a caveat over Mowbray Property Historical Title Search for Mowbray ; First Cross-Claim Paragraph [6]
16/03/09 Letter of demand sent from the deceased's solicitors to the accused's solicitors requesting indemnity payments for costs incurred during Tilley proceedings. Request $1.5 million. Also demands Stamp Duty be paid ($3 million) Letter of Demand
17/3/09 RMP lodges a cross-summons against the deceased in the Supreme Court Proceedings seeking re-transfer of the mortgages/loan documents relating to Wolseley Road. Cross- Summons
18/3/09 RMP commences proceedings in the Federal Court (NSD 224/2009) against (1) Bentley Smythe (2) Control Risks (3) Acett Pty Ltd (4) the deceased (5) Kimberly McGurk. RMP seeks interlocutory freezing orders over the deceased assets (up to $5 million) and commences an Originating Process. Interlocutory Process; Originating Process filed in the Federal Court
18/03/09 Justice Jacobson makes an ex parte "Freezing Order" Freezing Order
24/3/09 RMP v Bentley Smythe (NSD 224/2009) listed before Justice Graham at Federal Court. Transcript of Federal Court Proceedings
26/03/09 RMP v Bentley Smythe (NSD 224/2009) listed before Justice Graham at Federal Court. By consent the freezing order is set aside. Federal Court Orders
8/04/09 RMP v Bentley Smythe (NSD 224/2009) listed before Justice Graham at Federal Court. Graham dismisses the interlocutory process filed by RMP and orders that RMP pay costs. RMP v Bentley Smythe [2009] FCA 335
8/4/2009 A letter of demand is sent from the deceased's solicitors to the accused's solicitors re: indemnity costs for Tilley/Linkshore Supreme Court Proceedings and removal of caveat as ordered by court (over Edgecliffe Property) Letter of Demand
9/4/2009 The accused makes a second police statement about the deceased and the Tilley firebombing Statement of the accused 9/4/2009
22/4/09 The accused makes a third police statement about the deceased and the Tilley firebombing Statement of the accused dated 22/4/2009
8/5/2009 The deceased files a Second Cross-Claim response in the Supreme Court Second Cross-Claim Response of Cross-Defendant
9/5/2009 The deceased emails PM asking for copy of all correspondence between him and the accused regarding sale of AL shares. Email from PM to the deceased
9/5/2008 PM emails the deceased telling him there has been no correspondence except one phone call where the accused said "McGurk will be fixed up" and that he had been conned by the deceased and was seeking revenge. Email from PM to the deceased
15/5/09 PM travels to Auckland and meets with the accused, Tim Alford and Andrew Howard. The accused asks about PM supplying a statement against the deceased. Statement of Paul Mathieson dated 26/2/2010 Paragraph [43]
DIAC records
21/5/09 The deceased files a Notice of Motion in Federal Court seeking security for the costs of Bentley Smythe, Control Risks, Acett, the deceased and Kimberly McGurk Notice of Motion
21/6/09 Kimberly McGurk files first Cross-Claim against RMP seeking a declaration of a 50% interest in the Mowbray and Gerroa Properties. First Cross Claim
22/6/09 The deceased lodges a Bill of Costs in relation to the 8/4/2009 judgment of $100,000. Bill of Costs
13/7/09 Letter sent from solicitors for the deceased to solicitors the accused regarding amount owed by the deceased for indemnities under Tilley Trust. Requests $153,487.63 Letter from Holmann (sic) Webb to Clayton Utz
16/7/09 A letter is sent from the accused solicitors to the deceased's solicitors enclosing a cheque for $153,487.96 Letter from Clayton Utz to Holmann (sic) Webb
22/7/09 Consent orders are signed by the accused and the deceased in relation to Tilley dispute. Consent Orders
10/08/09 Solicitors for the deceased send the accused's solicitors a bill for the deceased's legal costs amounting to $70,228.45 and requesting immediate payment Letter from Mark Johnson to Clayton Utz
20/08/09 ODPP withdrew criminal charges against the deceased and he was discharged.
25/8/09 A Second Cross-Claim is filed in the Federal Court Proceedings by the deceased (First Cross-Claimant) and Kimberly McGurk (Second-Cross-Claimant) demanding money owed under AL deal. Cross-Claim by the deceased and Kimberly McGurk
1/09/09 Solicitors for the accused send email to solicitor for the deceased stating 'I do not expect Tilley will turn up on Friday although I have been informed that the Tilley's are now being assisted by the deceased". Email from Clayton Utz to Holmann (sic) Webb
2/09/09 Email sent from solicitors for the deceased to the accused's solicitors stating they have been misinformed about the deceased assisting the Tilleys Email from Mark Johnson to Clayton Utz
3/09/09 File note taken by Summer Dow re: conversation with Adam Tilley in which he said he didn't want to consent to the notice of discontinuance as the deceased told him not to. Wants to put the accused to further trouble and difficulty". File note
Mark Johnson 30.11.10 at 43 re telephone call with the deceased.
4/09/09 File note taken by Summer Down re conversation with Adam Tilley in which he asked if the deceased 'ever did that statement'. Summer Dow states 'I don't think so' and Tilley replied 'Fuck'. File note:
[4]
It is the Crown case that the accumulative effect of these disputes, the cost, his losses in court, the damage to his reputation and embarrassment the accused felt from how he was being treated by the deceased led to the irretrievable breakdown of their friendship and business relationship and a strong desire within the accused to have the deceased permanently removed from his life. The accused increasingly began to express this desire to Gattellari for the deceased to be killed during the early part of 2009.
The Relationship between the accused and Lucky Gattellari
81. The accused has known Gattellari for many years and over those years they developed a close business and personal relationship. Both men were raised in the same area of Sydney and their families were socially involved with each other.
82. In the early 1990's Gattellari leased the Macquarie Function Centre in Liverpool from the accused and his brother Roy who had acquired it some time earlier. Gattellari leased the Centre for about 5 years and during that time became closer to the accused who was quite financially supportive to Gattellari in the running of the business.
83. Gattellari, then operated the Ealing Forest Winery for a period of 3-4 years. The accused provided Gattellari approximately $300 000 during this period to assist in the operation and expansion of the winery. The money loaned to Gattellari was never documented and was never repaid.
84. In about 2005 Gattellari approached the accused with a business idea relating to the purchase and development of Aboriginal owned land. The proposal was to jointly deal with the Aboriginal Land Councils who would supply the land and the accused would then provide the funds for property development on the said land. The accused was keen to be involved and together they approached several Aboriginal Land Councils with their proposal to develop prime land either as a joint venture or to buy it outright. The accused provided several hundred thousands of dollars as 'incentives' or hand outs to members of the respective Councils but no land was ever purchased nor developed.
85. During this time Gattellari also approached the accused with another business proposal involving Aboriginal people, that is, a funeral fund specifically designed for Aboriginal people. The concept involved signed 'members' paying $5 per week and when they died the funeral fund would pay up to $5000 for their funeral expenses. The accused was receptive to the proposal and they set up a registered company called the 'Boomerang Funeral Fund'. Gattellari held approximately 10-20% of the shares in the company whereas the accused and Paul Mathieson held the remaining shares. Gattellari operated the business (and was assisted by Ron Mason selling the idea to different land councils, whom he had met in approximately 2005 when dealing with the Wagonga Aboriginal Land Council) the business, however, was not successful despite the accused investing approximately $800 000 into the business.
86. In 2008 Gattellari was approached by business associates to become involved with an electrical company called Rivercorp which was in financial stress. Gattellari then injected $400 000 into the company.
87. During July 2008 Kim Shipley, an accountant, was requested to conduct an assessment of the company's financial position as the accused, via Gattellari, had provided further funding and was seeking a financial direction. Shipley recommended the company be placed into administration. Soon after the accused advanced a further $5 million into Rivercorp to seek to place the business on a sound financial footing and allow it to move forward and expand. As at September 2008 the company was placed into administration and a deed of company arrangement was entered into.
88. As part of the arrangement, Gattellari's family company, 'Riv Developments' became the parent company to Rivercorp and then later to a number of other companies which were loaned money and then acquired when the loan was not repaid. These companies included Global Power, trading as IC Light [previously owned by Jim Emirian, Sancho Kalcev and Tony Hott] who borrowed $600 000 off Gattellari in March 2009 but were unable to repay and Gattellari took over control and the shares of the company in May 2009 into Riv Developments and subsequently to Riv Group. Shipley then became the CEO of the company but under the Riv Group and reported to both the accused and Gattellari. Other companies that were loaned money and then taken over when they could not repay the loan included Interpole (sic) (in Brisbane), ANS Electrical and others.
89. The accused's, Shipley's and Gattellari's aim was to take over various electrical companies to form a conglomerate with the view to set up a back door or public float. All the companies were in financial stress but had considerable receivables and required a loan of monies to keep afloat. The goal was to lend them money and if they defaulted on the flat rate (generally, $50 000 to borrow $300 000 within 1-2 months) they were taken over and absorbed into the Riv Group company in which the accused was the sole director and share holder.
90. The accused solely funded the venture using his accounts from the Captain Cook Trust and Ron Medich Properties. When the accused advanced funding to these companies he would do so through his own family trust company, Riv Group, (which came to be the parent company of the electrical companies) however, the money would be transferred first into Riv Developments and then distributed to the various subsidiary companies. Shipley would regularly advise the accused as to the status of the companies.
91.The companies were constantly in financial difficulties. During 2009 and 2010 the companies were not obtaining the contracts that they expected to obtain [even when they were the lowest tender], their reputation was poor and they repeatedly had problems in meeting payroll obligations. On many occasions they turned to the accused to provide the funds necessary to meet their obligations and considerable expenses, for example on 14 December 2009 Gattellari and Shipley were seeking $500 000 cash from the accused to pay for stock and materials.
92. At one time the accused provided Gattellari with a large amount of cash money [approximately $200 000] to cover payroll and other expenses At around the time of their arrests the accused and Gattellari were attempting to 'take over' a company 'AAK' in Hong Kong which was already publically listed and then 'get all the others in through the back door'. Upon being publicly listed the accused and Gattellari expected to receive a substantial financial reward.
93. The take-over of AAK never eventuated and upon their arrests in October 2010 the accused had invested well over $14 million into this venture.
94. The accused also used Gattellari to organize and at times personally participate in collecting debts owed to the accused. Gattellari requested Mathew Crockett , Senad Kaminic, Haissam Safetli and others to approach individuals (including Will Manning, Tim Alford) who had not repaid their loans to the accused and intimidate them into making their repayments.
95. 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'.
96. It was also understood between Gattellari and the accused that Gattellari would provide the accused cash or 'slush fund' payments when requested (near weekly) for the accused to spend on 'his personal habits including girls, restaurants and horse racing'. This allowed the accused to avoid detection of these expenses from for example, his wife.
97. These payments were not regarded as interest or capital repayments on the vast amount of monies the accused was injecting into the electrical companies [LG 21.7.11 at 21] but were recorded in ledgers created by Gattellari and initially created to appear as if the monies were repayments.]One ledger commences on 28 March 2009 with a recorded cash payment of $6000 and the last recorded entry is 10 November 2009 with a recorded cash payment of $5000 [small 2009 diary] and another [in 2010 diary] refers to cash payments from 22.12.09 until 7 February 2010.
The Genesis of the Contract to kill Michael McGurk:
Surveillance commenced on the deceased:
98. Sometime around March 2009 Safetli and his brother Bassam were employed at various times to conduct debt collection 'duties' for Gattellari.
99. At some point whilst debt collecting for Gattellari on behalf of the accused (Tim Alford), Bassam Safetli indicated to Gattellari that they were prepared to go further than just intimidate a person and stated ' if you want anyone taken care of it won't (sic) be a problem'.
100. At around this time the accused and the deceased's relationship had completely broken down and he constantly reiterated to Gattellari his hatred of the deceased and how he was ruining his life. On one occasion around this time, the accused told Gattellari that he wanted the deceased followed to find out everything they could about him.
101. Consequently, Gattellari spoke to Kaminic who suggested Haissam and Bassam Safetli conduct the surveillance. Kaminic arranged for Gattellari to meet Haissam Safetli and his brother. At the meeting Gattellari asked them to carry out some surveillance on the deceased and supplied them with information relating to the deceased's name, home address and business address. Gattellari told Safetli he wanted him to follow the deceased and find out everything he could about him.
102. Safetli then attended the deceased's home address and his business address in the city. Safetli also recruited several other associates, for example, his brother Bassam Safetli and Krystal Weir to also conduct surveillance upon the deceased.
103. Safetli's brother, during the course of the surveillance, also took photographs of the deceased (and downloaded them onto a CD) and provided them to Kaminic to pass onto Gattellari stating there are photographs on here 'that Ron will be happy with this'. Information obtained during the surveillance was continually relayed from Safetli, to Kaminic to Gattellari to Medich who printed them out.
The Contract to kill the deceased:
104. About two weeks later (towards the end of March/early April) Gattellari had a meeting with the accused at his office where they discussed the deceased and the ongoing disputes between them. Kaminic attended Leichhardt with Gattellari but was seated outside the office reception area.[para 53 Kaminic 30.11.10] Medich informed Gattellari: 'I need to put an end to this. I need some help from you, I need you to find someone to kill him for me.' Gattellari replied, 'are you sure about this, because there is no going back' and the accused stated, 'yes, I am absolutely sure, if you can find someone I want him dead.'
105. At the conclusion of the meeting, and once they were in the car leaving Leichhardt, Gattellari told Kaminic to send a message to Safetli to come to a meeting and stated that 'it looks like Ron wants to go all the way.' Kaminic asked him what was going on and Gattellari replied 'I don't know but it looks (like) he wants him finished off.'
106. The accused repeated this request to Gattellari a couple of days later, in fact asking him whether he had found anyone to 'do that job?' Gattellari then discussed with Kaminic about approaching Safetli to ascertain if he would do it.
107. These occasions were not the first times that the accused had expressed to Gattellari that he wanted the deceased murdered. Indeed from late 2008 the accused, whenever he spoke about the deceased, did so aggressively and constantly made comments that 'I wish I had never met the man', 'he is ruining my life.'
108. During 2009 Gattellari had daily contact with the accused. The accused constantly complained to Gattellari about the exorbitant costs and embarrassment involved in his litigation against the deceased and was becoming increasing concerned that he would not recoup the money invested in the deceased. The accused was also very embarrassed and humiliated by the way the deceased treated him and believed he made a fool of him.
109. At the same time the accused told Gattellari that once the deceased had been killed he wanted pressure applied to the deceased's wife, Kimberley McGurk, to intimidate her into resolving her husband's outstanding legal disputes with him. The accused believed this would lead to these matters being resolved in his favour.
110. Kaminic then organised a meeting between Safetli and Gattellari and prior to the meeting informed Safetli why the meeting was called. Gattellari told Safetli, in the presence of Kaminic, that he was not happy with the surveillance work performed so far and that it had cost the accused a lot of money and headaches. He then stated to Safetli that he (the accused) wants him (the deceased) gone and asked him if he wanted to do it and how much money he wanted to do it.
111. Safetli agreed to do it and Gattellari negotiated the price with Safetli to carry out the murder. It was agreed that Safetli would be paid $300 000 to murder the deceased. It was further agreed that Gattellari would organise for money to be provided to Safetli for expenses and organising the murder and upon the completion of the contract Gattellari would pay him the amount outstanding.
112. During this meeting Gattellari also informed Safetli that after the murder of the deceased Medich wanted the deceased's wife to receive a threatening message that she had to repay her husband's debts.
113. Shortly after this meeting Gattellari informed the accused that he had found someone to kill the deceased (and the accused confirmed he wanted it done) but that it would cost $300,000 and $500 000 in total for the murder and intimidation of Mrs McGurk. The accused complained about the amount but agreed to paying that amount. Gattellari told him Safetli needed some cash for expenses to start and the accused stated he would organise some cash through his friend and associate, Les Samba.
114. A couple of days later Gattellari drove to the accused's home on Wolseley Road, Point Piper with Kaminic. Upon their arrival at his home the accused left the room and returned with a packet of cry-vac sealed cash and stated 'here's 250 to take care of McGurk.' Gattellari put the money into his carry bag and left to drive back to Chipping Norton. After taking out $45 000 from the cry-vac bag he placed the remaining money into a safe located in his bedroom.
115. Gattellari placed the $45,000 into a brown paper bag and gave it to Kaminic, telling him 'tell the guys that this is their expense money. Tell them they have to start doing what they need to do.' This money was the first payment to Safetli for the murder of the deceased.
116. Some of this remaining cash was handed to Shipley to inject into the electrical companies under the Riv Group and then Gattellari would then drawer from the company accounts to pay Safelti (sic) for the murder.
April 2009 - July 2009
117. Initially the plan to murder the deceased involved a desire to make the murder look like a cocaine overdose gone wrong. However, as the weeks went by, the accused became increasingly frustrated at the time it was taking for the deceased to be killed. He regularly stated to Gattellari ' Why is it taking so long?' and 'why hasn't it finished?'. Consequently, Gattellari and Kaminic, regularly spoke or met with Safetli to seek an update as to the progress of the planning and to pass on the accused's frustration and desire for the murder to be committed as soon as possible.
118. At one meeting, at his home, Gattellari stated to Safetli, 'this is costing Ron a lot of money, it is causing him headaches, he just wants it done…just get it done anyway you can.'
119. On 15 May 2009, Paul Mathieson flew to Auckland to attend a meeting with the accused, Tim Alford and Andrew Howard. During the meeting the accused was quite friendly to Mathieson and stated that he wanted to rectify the Amazing Loans dispute and assist by lending more money on the condition that Paul Mathieson supply a statement against the deceased to police in relation to his criminal charge. Throughout the meeting the accused made a number of comments about the deceased including "I'm going to fix him. Don't worry, he won't be a problem for much longer" and "It doesn't matter when he gets locked up for the firebombing, either way he won't be a problem."
120. On 16 May 2009 (until 21 May 2009) Gattellari and the accused flew to China for business. During this trip Gattellari sent Kaminic a text message stating words similar to: 'if they're ever gonna do it, this would be the time.' This followed repeated complaints and questioning from the accused to Gattellari as to why it was taking so long.
121. During these few months Safetli attempted to find and engage someone willing to carry out the murder with him. A person known to him for many years appeared to be interested in committing the murder for a significant amount of money but whilst regularly taking significant amounts of the cash constantly delayed and prevaricated about committing the actual act. It became apparent that Safetli was being swindled to feed his friend's drug habit. Gattellari nor the accused had any knowledge of this (sic).
122. These delays caused greater pressure to be exerted on Gattellari from the accused who was being increasingly concerned and annoyed at the time it was taking for the deceased to be murdered. In turn Gattellari and Kaminic were constantly enquiring as to when it would take place. During any mobile phone communication the parties would refer to the contract to murder the deceased as 'rims, or wheels, or tyres' for example 'are they tyres ready?' or 'when do you think you will have this quote done?'
Car Accident 3 July 2009
123. In around June 2009 the deceased approached Radwan Zrieka (Zrieka) whom he had previously used to collect bad debts, and asked him to stage a car accident by running his car into the accused's car after the accused had been at lunch. The deceased impressed upon Zrieka the importance of calling the police with the hope the accused would be arrested for drink driving which would have a negative effect upon their current litigation. The deceased also questioned whether Zrieka was prepared to kill someone. Zrieka believed the deceased to have been drinking at the time.
124. It was agreed that Zrieka would be paid $3000. On 3 July 2009 Zrieka followed the accused from Tuscany's restaurant and deliberately ran into his car at the corner of Sussex and King Streets in the city. Zrieka, over objection from the accused, called the police who arrived shortly after. The accused was breathalysed and then taken away by police. Zrieka telephoned the deceased and informed him of what had occurred and later that day collected $5000 in an envelope from a female assistant of the deceased.
125. After the incident the accused met Gattellari and told him that 'some asshole had (just) run into me. I almost swear it was deliberate and not an accident…it wouldn't surprise me if it was that cunt McGurk trying to get me off his back, sending me a message.'
126. The accused was very agitated and angry and asked Gattellari ' What the fuck is going on? How long is this going to take? Are you sure these guys know what they are doing?' Gattellari replied that he had done all that he could and was out of his hands.
Further Recruitment
127. During July 2009 Gattellari was still receiving constant pressure from the accused as to when the murder was going to take place. Consequently, Gattellari re-laid (sic) this to Kaminic who called Safetli into a meeting at the factory in Chipping Norton. Gattellari passed on the accused's concern about the inaction and delay and asked if Safetli 'needed a hand'. Safetli stated that he did.
128. Gattellari had a discussion with an associate of his, Ronald Mason from the Wagonga Aboriginal Land Council and told him that the accused had asked him to find someone to kill the deceased, that he thought he had but the deceased was still alive. Gattellari stated that the deceased was costing the accused a hundred thousand dollars per week. Mason said he knew someone who might be interested. A meeting was then arranged between Safetli and this potential other recruit at Malabar RSL.
129. During this meeting the recruit, Henry Landini, stated he was prepared to do it but asked for a considerable sum of money up front, either one or two hundred thousand dollars. When informed of this Gattellari told Safetli he was not prepared to part with that amount of Medich's money to someone he did not know.
Jindabyne: 20 - 24 July 2009
130. The deceased obtained a variation to his bail conditions (to the arson charges) to report to Jindabyne Police station from 20 - 24 July 2009 whilst he was on a family holiday.
131. The accused was notified of this planned change and family holiday (by a police officer). On around 18 July 2009 the accused met Gattellari and asked whether or not 'these guys' knew where the deceased was or what he was doing. He then informed Gattellari of the deceased's intended trip to Jindabyne who, in turn, instructed Kaminic to notify Safetli of this upcoming holiday.
132. Upon being notified Safetli requested additional money to fund the trip to Jindabyne to murder the deceased. This message was passed onto Gattellari via Kaminic. Gattellari obtained either $5000 or $10 000 from the money stored in his safe and passed onto Kaminic to give to Safetli.
133. Gattellari and Kaminic departed Australia on 23 July 2009. Safetli actively planned and made preparations to drive to Jindabyne to murder the deceased, including recruiting a person to assist. Ultimately, however, due to delays and the unreliability of the person recruited, Safetli never attended Jindabyne.
August 2009
134. During late July or early August 2009 Safetli discussed the murder contract with Christopher Estephan, the 19 year old friend of his nephew, Adam Chahine. Estephan was keen to become involved and together Safetli and Estephan commenced preparations for the murder. It was agreed that Estephan would be paid $30 000 plus expenses for his role in the enterprise. Safetli then detailed to Estephan who the intended victim was and showed him where he lived. Gattellari nor the accused had any knowledge of this.
135. Estephan purchased a .22 calibre rifle and a single barrel shot gun and provided them to Safetli for about $6000. These were paid for out of the monies provided to Safetli from Gattellari.
136. On 18 August 2009 Estephan stole a set of vehicle number plates from a Mercedes van in the Parramatta area. The following day Safetli and Estephan travelled to 11 Cranbrook Avenue, Cremorne with the rifle in Estephan's white Mercedes van. Prior to their arrival, Estephan swapped his vehicle's number plates with the set he had stolen the day before. They arrived outside the deceased's home mid afternoon and waited for him. After several hours they did not sight the deceased and abandoned their attempt to murder him that day.
137. In the following days Estephan and Safetli modified the .22 'Norinco' brand rifle by using a hand grinder to cut off part of the handle and the barrel. This made the gun easier to use. They test fired the modified rifle to ensure it was operational.
138. A few days later Safetli met with Gattellari at Chipping Norton and told him the 'job' will be done. Gattellari told Safetli that the deceased was costing the accused 'millions' and that the accused wanted a 'heads up' before the murder so he could ensure he was in a public place when it occurred.
2 September 2009
139. On 2 September 2009 Safetli and Estephan met and decided to commit the murder the following day. It was also decided that they would use Safetli's 2002 Toyota hilux Ute that was unregistered.
140. On 2 September 2009 Gattellari and Kaminic travelled to Narooma and stayed overnight in a local hotel and met with Mason's daughter for dinner. Gattellari maintains that this trip was unrelated to the arrangements between Estephan and Safetli referred to in paragraph [132] supra.
3 September 2009
141. During the morning and early afternoon there was telephone contact between Gattellari and the accused and Gattellari and Safetli. The last recorded contact being a text message sent to Gattellari at 15.09 on Safetli's brother Bassam Safetli's mobile phone.
142. At about 1pm Gattellari and Kaminic arrived back in Sydney and headed to Market City and had lunch in a private room at the China Grand restaurant. The accused joined them a short time later. At about 4 pm they all left the restaurant and attended the Babylon Massage Parlour.
143. At around 1.30 pm Estephan arrived at Safetli's home address in Elderslie, near Camden, with number plates AL 68 EB he had stolen from a Hilux Ute from a residential car park in Liverpool just prior to arriving. They attached the plates to the front and rear of the utility.
144. Safetli was dressed in a dark tracksuit with a long khaki coat. They smoked marijuana and Safetli drank some whisky. They grabbed the modified rifle which was in a Stanley bag and placed it in the cabin of the Ute and headed off to Cremorne.
145. At 2.54pm this vehicle was travelling eastbound on the M5 motorway passing through a toll collection point without a valid electronic toll pass. Safetli and Estephan arrived in Cranbrook Avenue, Cremorne at around 3.30 pm stopping the vehicle on the northern side of the street facing east towards Spofforth Street. They were directly opposite the deceased's home.
146. A short time later Estephan walked from the Ute to Cremorne Cellars bottle shop located at 45A Spofforth Street and attempted to purchase some alcohol however was declined service as he was not able to provide a valid proof of age. He returned to the vehicle.
147. At 6pm Gattellari, Kaminic and the accused left the Babylon Massage Parlour in Market City and the accused attends (sic) the Bligh Bar in Sydney to meet friends for a drink. Gattellari was driven home to Chipping Norton by Kaminic.
148. Also at around 6 pm Safetli walked from the utility to the Cellars and at 6.10 pm purchased a 375ml bottle of Jim Beam before returning to the vehicle on foot. Upon his return to the car Safetli started to drink whisky and swapped seats with Estephan so that Estephan was now seated in the driver's seat.
149. At around this time the deceased was driving home from his York Street office and picked up his 9 year old son from a school friend's home before going to Charlie's Chicken shop with his son to buy a takeaway meal. They then went to the Mosman Newsagency at around 6.13 pm before attending the IGA supermarket and leaving at 6.23 pm to drive home.
150. At about 6.25 pm the deceased drove his Mercedes sedan from Spofforth Street into Cranbrook Avenue, stopping it on the southern side of the street outside the side entrance to his house. As he opened the driver's door, leaned into the back seat to retrieve the shopping, and then began to exit the car he was shot at close range by either Safetli or Estephan who had grabbed the modified rifle upon seeing the car, got out of the utility and walked quickly over to the deceased's side of the Mercedes. The deceased was shot behind his right ear fatally wounding him. The deceased (sic) son was present in the front passenger seat of the car.
Actions of Safeti (sic) and Estephan Post Murder
151. Following the shooting Estephan drove the utility east towards Spofforth Street, almost stalling the vehicle at the round-a-bout on Spofforth Street and barely avoided a collision. Safetli, seated in the passenger seat then started to use a Phillips head screwdriver to dismantle the rifle separating the barrel from the wooden stock. They then travelled north towards Military Road. They then travelled over the Harbour Bridge and then the ANZAC bridge before they stopped at Bicentennial Park, Rozelle Bay.
152. Safetli threw the detached metal frame of the weapon into Sydney Harbour at Rozelle Bay. On 15 September 2010, police divers recovered this weapon.
153. Following this, Safetli and Estephan drive towards Safetli's home at Elderslie. They continued onto the M5 South Western motorway and at a point west of King Georges Road at Narwee they stopped in the breakdown lane. Safetli got out of the car and threw the cut down wooden stock of the rifle over the motorway sound partition. He got back into the utility and they continued westbound along the motorway before arriving at Safetli's home before 8pm.
154. Upon their arrival at Elderslie Estephan and Safetli built a fire in a pot and burned their clothing, the number plates and mobile phones.
155. At 8.03pm a text message was sent to Gattellari or Kaminic from the mobile phone of Safetli's brother, at the request of Safetli. The message read, 'Job's done.' The following day Gattellari met the accused for lunch at the Tuscany Restaurant in Leichhardt and asked 'are you happy that it is done?' and the accused replied something like, 'it's taken long enough.'
156. The following day Safetli received a text message from Kaminic arranging to meet him to receive part payment of the outstanding amount owed to him for committing the murder. Kaminic drove to Safetli's residence at Elderslie and gave him an envelope or bag containing $20 000.00. Safetli told Kaminic 'the job is done.'
157. A few days later Safetli received another package of cash from Gattellari via Kaminic. This occurred regularly over the next few months - Gattellari would provide Kaminic with a package or bag containing cash as payment for the murder of the deceased and Kaminic would arrange to meet Safetli and then handed over the payment monies. The amounts varied between $10,000, $20 000 and $40,000. This continued until the balance of the $300 000 was paid, with the final payment being Gattellari giving the offender his Honda Jazz motor vehicle.
Events Post Murder and the Intimidation of Mrs Kimberley McGurk:
158. In the days following the murder of the deceased the accused received intense media attention and consequently instructed Gattellari to 'stop everything, there is too much shit happening, too much tension' threatening the widow of the deceased until the attention upon him had died down (sic).
159. Following the murder of the deceased the accused maintained a close personal and business relationship with Gattellari. He maintained his financial support and involvement in the electrical companies during the remainder of 2009 and in 2010 to a lesser extent as his cash flow was significantly reduced and he received enormous pressure from his wife to distance himself from Gattellari and to cease funding the electrical companies.
160. After one heated exchange with his wife (over the telephone) the accused, whilst having lunch with Gattellari, Kaminic and Crockett, stated, words to the effect of, 'I should have fucked her off like McGurk.'. He was told to 'shh'.
161. Between March and 30 June 2010 the accused had arranged for the transfer of the shares in the electrical companies to the control of Riv Developments (Gattellari's company) from the Riv Group (his company). One reason for this was that it prevented the accused's wife being able to access the financial documents of the businesses. The accused maintained a charge over the assets belonging to Riv Developments.
162. Around December 2009 the accused transferred his shares (and those of Les Samba) in Amazing Loans and IEG to Riv Developments (Gattellari's company) in order for Gattellari and Shipley to negotiate the sale of his shares to Paul Mathieson. Indeed in February 2010 Shipley (initially prior to Christmas 2009 it was to be Gattellari and Shipley) travelled to Hawaii to attempt to negotiate the sale on the accused's behalf on the pretence that the accused no longer had anything to do with the shares. These negotiations continued through most of 2010.
163. Shipley met with Paul Mathieson (the meeting was legally recorded by police) and the negotiations was far from fruitful. Shipley flew back to Sydney and advised Gattellari as to the failed attempt to create the ruse that the accused was not involved with the shares and the subsequent sale.
164. The accused, in 2010, also became closely involved with Gattellari in attempting to loan Matt Thomas and Mick Gatto from Melbourne $1 million and many discussions were had between the accused and Gattellari in their attempt to obtain the money to loan to their Melbourne associates. The accused also had Gattellari, in early 2010, arrange for someone to conduct surveillance upon his wife.
165. The litigation between the accused and the deceased's estate continued after the death of the deceased. Two months after his death, on 20 November 2009, the accused placed a caveat over the home of Kimberly McGurk (11 Cranbrook Avenue, Cremorne). The caveat had been signed by the accused two days after the deceased's death on 5 September 2009.
166. Following the service of a lapsing notice, on 31 March 2010 RMP commenced proceedings in the Supreme Court to extend the caveat. The caveat was extended by Justice Brenton (sic) until 14 April 2010 and again on 14 April 2010 until 28 May 2010.
167. On 19 May 2010, RMP filed a Second further Amended Application. [Defence to Second Cross Claim 1065] RMP was seeking payment of:
167.1 $3.4 million ($4.4 million- $1 million returned from Bentley Smythe);
167.2 payment of $2, 231,255.32 (for surplus paid for Mowbray/Gerroa);
167.3 equitable compensation for breach of fiduciary duty by the deceased;
167.4 declaration that Control Risks, Acett and the deceased have engaged in misleading and deceptive conduct;
167.5 a declaration setting aside the two deeds of trust (in which RMP held Mowbray and Gerroa for Kimberly McGurk);
167.6 Damages against Control Risks, Acett and the deceased;
167.7 a declaration that 11 Cranbrook Avenue, Cremorne is held subject to a constructive trust for the repayment of the $3.8 million paid to the deceased on 25/2/2008 or an order that Kimberly McGurk pay $3.8 million.
168. On 26 May 2010 Palmer J handed down an ex tempore judgment not extending the caveat, refusing leave being granted pursuant to s740; refusing an injunction and refusing an adjournment. [RMP v McGurk [2010] NSWSC 552]
169. Justice Palmer stated that he was not persuaded that the caveat was not an abuse of the caveat procedure and referred to the inconsistencies in the accused's statements.
170. The Federal Court Proceedings (NSD 224/2009) for all current and live disputes were stayed in November 2010 as a result of the criminal law proceedings.
171. The accused was increasingly frustrated that the death of the deceased had not resolved his financial and legal disputes with the McGurk estate. There was never any definite date allocated to threaten the deceased's widow but after a few weeks had passed and the estate was still disputing the accused's claims in court he stated to Gattellari that 'the bitch must have been part of this from the start, she is as tough as he was.'
172. Around February 2010 Kaminic approached an associate of his, Daniel Costa and arranged a meeting with him and Gattellari. The meeting was held at Gattellari's home around 5 February 2010 and Costa was offered the job of delivering a threatening message to Mrs McGurk to pay the debts to the accused. Costa, whilst appearing interested never intended to execute this request and prevaricated over the next few months, offering up many varied excused why he could not do it on particular days. In the end, by around May 2010 Kaminic and Gattellari had given up and finally realized he was not going to do it.
173. On 26 May 2010 when the caveat was not extended the accused was enraged and he instructed Gattellari to reinstate the 'job' on Mrs McGurk to intimidate her to settle their legal disputes and pay him (the accused) what he believed he was owed by her husband. The accused stated to Gattellari 'that fucking bitch has got to get the message. I'm sick of it.'
174. Sometime later, around 26 July 2010 the accused, whilst dining at Carpaccio Restaurant, Leichhardt reiterated to Gattellari that a message must be delivered to Mrs McGurk to pressure her into settling the legal disputes and to three other men including Paul Mathieson and Bob Ell as the accused believed he was assisting Kimberley McGurk with her legal fees.
175. Gattellari then arranged for Kaminic to bring Safetli to his office at Chipping Norton (on the following day) where he told Safetli that the accused needed Mrs McGurk to receive a visit and to be threatened and no violence was to be used, stating 'Ron needs four jobs done. I will tell you what they are and tell me if you're interested. One is a visit to McGuire's wife, a visit overseas to Paul Mathieson, two other guys in Sydney which we will discuss later. One is a solicitor and one is a developer. Tell me how much you want to do these jobs, have a chat and let me know.'
176. Safetli, after speaking with Kaminic alone, agreed but wanted $100 000 - with half being given upfront and a $200 000 for the other three. Gattellari agreed.
177. Gattellari then informed the accused of Safetli's acceptance to do the 'job' and the cost involved. They then discussed ensuring they were overseas when the 'visit' to Mrs McGurk occurred. They planned to go to China and Hong Kong and then fly home.
178. On 28 July 2010 Gattellari, Kaminic and Safetli met at IC Light, Chipping Norton and discussed the message that was to be delivered to Mrs McGurk.
179. On 30 July 2010 at 10.40 am Gattellari states (sic) to the accused 'if you can do what we discussed I want to go out, when we leave next week I want everything finalized and finished, and another matter I want to discuss with you which might be advantageous, sort of put a quote in and everything' discussing, in code, the obtaining of the cash for the job and for it to be given to Gattellari .
180. At around 30 July 2010 the accused provided Gattellari with $100 000 cash in a plastic shopping bag that he retrieved from his car when they were both in the office at Leichhardt to pay Safetli to intimidate Mrs McGurk.
181. Safetli approached his friend around 27 July 2010 who was now a registered source assisting the police, and offered him $30 000 to assist him in delivering the message to Mrs McGurk. Safetli told the associate that he had to go the house and deliver the message wearing a wig and cap. The associate, at this time, was assisting police and the majority of the conversations between Safetli and the associate were legally recorded.
182. On 3 August 2010 Kaminic, Safetli and Gattellari met at IC Light factory and discussed the exact date the intimidation was to occur so Gattellari could book his and the accused's flights to China to ensure they were out of the country when the intimidation occurred.
183. During 2 August 2010 and 4 August 2010 Gattellari and the accused discuss (sic) the preferable date to leave Sydney to ensure they were absent from Australia when Mrs McGurk was intimidated. At one stage during the telephone call on 4 August 2010 at 11.24 Gattellari states (sic) to the accused '…we wouldn't Ron we are not taking a holiday trip here, the trip is based on certain things that need to happen at a certain time' and the accused replied 'yeah' and they decide (sic) to 'talk about it' when they met up at 12pm.
184. On around 4 August 2010 Safetli received the $50 000 cash as the deposit for the 'job'.
185. On 6 August 2010 Gattellari and the accused left Australia and travelled to China, returning on 12 August 2010. Kaminic met up with the accused in Liverpool and provided further instructions to him about his approach to Mrs McGurk.
186. Safetli then met up with the registered source and instructed him to obtain a wig and coloured contact lenses as a disguise. Safetli informed him that they will deliver the threatening message to Mrs McGurk in two days time and that his 'bosses' were overseas and the message was to be delivered whilst they were out of the country.
187. On 8 August 2010, at around 6.30 pm, the accused drove to the associate's home in Condell Park and they both drove to Cremorne in the associate's car (which had been fitted with a tagging device by police) arriving at about 7.30pm. As directed by the accused, the registered source disguised himself, walked up to the house and told Mrs McGurk ' you need to do the right thing and pay back your husband's debt - don't be a thief like your husband' before leaving the home and returning to Safetli who was parked nearby. Mrs McGurk, although knowing this was a controlled operation, was terrified from the ordeal.
188. The accused then drove away returning to the associate's residence. On the return journey Safetli confirmed the delivery of the message ensuring the associate attended the correct house. Upon arrival at the associate's home Safetli wiped down the vehicle before instructing the associate to burn the wig and his clothing.
189. Safetli then notified Kaminic that the message had been delivered and Kaminic passed this message on to Gattellari in China who in turn informed the accused at the bar at the Royal Garden Hotel in China.
190. On 9 August 2010 Safetli handed the associate an envelope with $10 000 cash inside (stating the associate owed him $10 000 from a previous loan) for his role in threatening the victim.
191. On around 13 August 2010 Gattellari retrieved the other $50 000 from his home safe and placed it in a brown A4 envelope and gave it to Kaminic to give to Safetli.
192. Kaminic received $10 000 from Safetli as a commission for arranging his involvement in this 'job'.
193. On 20 August 2010 the accused told Gattellari that he had received a call asking him to meet Richie Vereker and Bob Ell at Arun Thai in Potts Point. The accused was very happy as he believed that it meant Mrs McGurk had 'got the message' and the lunch would indeed be a 'settlement meeting'.
194. The accused sat at a table with Vereker and Ell and tried to convince him to negotiate and settle his disputes with Mrs McGurk by giving her a few hundred thousand dollars to obtain the properties but he adamantly refused.
195. When the accused returned to the other table where Gattellari was seated with Kaminic and Crockett the accused stated to Gattellari: 'they want me to stop harassing McGurk's wife. [The accused replied to them]What makes you think that I am harassing her [and they replied]…you are the only one that she owes money to that we know of.'
196. The accused became increasingly paranoid and fearful of the police becoming aware of his involvement in the murder as the year went by. Whenever he spoke about the murder to Gattellari they either met at a park, outside the accused's office at a restaurant or in Babylon (Massage Parlour).
197. At one stage Crockett was tasked to 'sweep' the accused's office and car to ascertain if there were any listening devices in existence. Just prior to Gattellari's arrest the accused stated to Gattellari that he was concerned his lawyer was talking to the police about the 'McGurk murder'.
The Police Investigation
198. Strike Force Narrunga was established to investigate the murder. Initially the investigation concentrated on a large number of the deceased's business dealings including his highly publicised conflict with the accused.
199. On 7 September 2009 police executed a search warrant upon the residence of Gattellari [following the receipt of a handwritten note handed to them by Sarina] during which a number of business documents and other items of interest were seized.
200. On 16 December 2009 an investigation reference 'Limbri' was granted by New South Wales Crime Commission Management Committee in relation to this murder. In December 2009 lawful interception of the mobile telephone services used by the accused, Gattellari, Kaminic, Safetli and Estephan were commenced.
201. In early 2010 the police received information from a number of sources implicating the accused, Gattellari, Safetli, Kaminic and Estephan in the murder of the deceased.
202. Between 15 September 2010 and 12 October 2010 a number of conversations between Gattellari, Safetli and Kaminic were lawfully recorded. During these conversations they discussed the intense pressure of the NSWCC hearings (which were currently on foot) and Gattellari attempted to convince Safetli to 'take the wrap' for all of them for the murder by making a handwritten confession excluding their involvement and in return he would obtain a guarantee from the accused to fund his defence and look after his family. [see LD transcripts on 2.10.10;
Arrest
203. On 13 October 2010 Gattellari, Kaminic, Safetli and Estephan were arrested and charged with offences relating to the murder of Michael McGurk.
204. On the day of Gattellari's arrest Shipley had a meeting with the accused and requested funds to pay for Gattellari's legal fees. The accused said 'don't be bloody stupid, it's their problem now.' The accused's hands were shaking and he was highly agitated, nearly incoherent in speech.
205. Shipley asked the accused if he was involved and the accused replied 'be careful what you say, the walls have ears.'
206. On 26 October 2010 the accused was arrested and charged with soliciting the murder of Michael McGurk and then later charged with his murder and in June 2013 he was charged with the intimidation of Mrs McGurk on 8 August 2010.
207. On 31 July 2012 Gattellari pleaded guilty to Murder on the basis of accessory before the fact in the Central Local Court and was committed for sentence to the Supreme Court on 7 September 2012 where he again pleaded guilty. Gattellari signed an undertaking to give evidence against his co accused.
208. On 10 May 2013 Gattellari was sentenced to a non parole period of seven (7) years and six (6) months imprisonment with an additional term of two (2) years and six (6) months imprisonment after receiving a 60% discount for his plea, past and future assistance.
209. On 16 August 2012 Kaminic pleaded guilty to accessory after the fact to murder in the Central Local Court and was committed for sentence to the Supreme Court on 7 September 2012. Kaminic signed an undertaking to assist on 11 February 2012 and was indemnified by the Attorney General on 5 July 2012 in regard to the offences of murder, accessory before the fact to murder and intimidation of Mrs McGurk.
210. On 10 May 2013 after receiving a 50% discount for his plea, past and future assistance, Kaminic was sentenced to a non parole period of two (2) years and six (6) months imprisonment with an additional term of two (2) years imprisonment.
211. On 2 July 2013 Safetli pleaded guilty to the murder of Michael McGurk on 3 September 2009 and acknowledged his guilt in relation to the intimidation of Mrs McGurk on 8 August 2010 (which was placed on a s166 certificate) in the Downing Centre Local Court and was committed for sentence to the Supreme Court on 5 July 2013. On 1 August 2013 he adhered to his pleas and signed an undertaking to give evidence. He is due to be sentenced on 9 August 2013.
212. On 9 August 2013 after receiving a 60% discount for his plea and past and future assistance Safetli was sentenced to fixed term of 6 months imprisonment for the intimidation charge to date from 13 October 2010 expiring 12 April 2011. For the murder charge he was sentenced to a non parole period of 6 years and 6 months to date from 13 April 2011 expiring on 12 October 2017 with an additional term of 2 years and 6 months.
213. Following a committal proceedings of approximately 7 weeks duration the accused was committed for trial on solicit to murder, murder and the intimidation of Mrs Kimberley McGurk on Friday 27 September 2013."
[5]
The Defence case
Exhibit 2 in the application before me is a document headed "Defence Case Statement". The document is undated but I infer from its contents that it was prepared for the purposes of supporting an application pursuant to s. 91 of the Criminal Procedure Act 1986 for the attendance of various persons for cross-examination at the applicant's committal proceedings. It is apparent from reading that document that a substantial part of the defence case is that Gattellari was someone who was prone to violence, who knew the deceased, and who had a motive, arising from his own dealings with the deceased, to kill him. As a consequence, and consistent with the statement made by the applicant at the conclusion of the committal proceedings, the credit of Gattellari is very much in issue.
[6]
The establishment of Strike Force Narrunga
Strike Force Narrunga was established virtually immediately following the deceased's murder on 3 September 2009. Det. Sheehy was appointed the Investigation Co-ordinator, heading a team of investigators from the Homicide Squad and elsewhere. Det. Fitzhenry was appointed the officer in charge of the investigation on 4 September 2009 and he remains in that position.
As the co-ordinator, Det. Sheehy played a fundamental role in directing the investigation (T31 L5-7). In particular, he identified those persons who, in his view, warranted close attention (T31 L9-16).
As the officer in charge, Det. Fitzhenry has been responsible for the supervision and management of the investigation on a day to day basis. That role has included providing direction to other police, allocating tasks for investigation and assessing material (referred to in the evidence as "product(s)") obtained as a consequence of those tasks being carried out. All tasks allocated, and all product(s) obtained as a result, have been recorded on the Police Investigations Management System known as "E@glei".
Various other officers have been assigned to the investigation of the deceased's murder. They include Dets. Howe, Blanch, King, Groves and Watson.
[7]
Reference of the investigation to the NSW Crime Commission
In about November 2009 the New South Wales Crime Commission ("the Commission") received a request from Strike Force Narrunga to assist in the investigation. On 16 December 2009, pursuant to the provisions of s. 25 of the (now repealed) New South Wales Crime Commission Act 1985 ("the NSWCC Act") the investigation was referred to the Commission under the code-name "Limbri".
[8]
The Summons issued to the applicant to attend the Commission
In or about July/August 2010, following discussions between police and persons attached to the Commission, summonses were issued to a number of people requiring them to attend before the Commission and give evidence (T27 L22-34; T29 L1-34). Those persons included the applicant and Gattellari.
The decision as to who was to be issued with a summons was made at the Commission in consultation with police. Those police included Det. Fitzhenry (para. 7 and 8 of his affidavit), Det. Howe (T 17 L48-50; T25 L37-43) and Det. Sheehy (T27 L32-34; T 28 L47-49). Det. Sheehy, who also had input into the order in which people might be called to give evidence (T 28 L40-49), agreed (T34 L9-21) that when these discussions were taking place the applicant was a "person of interest" to the investigation. Det. Sheehy was not prepared to concede that the applicant was a "suspect" at that time although in my view, the distinction he sought to draw between the two was really a distinction without a difference. The unequivocal evidence of Det. Blanch (T44 L15-17) was that the applicant was a suspect when he appeared before the Commission
One of the purposes of issuing a summons to the applicant was to promote conversations amongst those who had been identified as persons of interest to the investigation. It was envisaged that such conversations as did occur would be recorded pursuant to various warrants which were in existence at the time. It was obviously hoped that the content of those conversations might provide police with further investigative leads (T 25 L47 - T26 L3) although there is no evidence that this in fact eventuated.
However, promotion of conversations was not the sole purpose of issuing a summons to the applicant. Another purpose was to enable material which had been obtained in the course of the investigation to be put to him at a hearing (T26 L5-7; T27 L36-44).
[9]
The applicant's appearance before the Commission
On 1 September 2010 the applicant, represented by his then solicitor Mr Bamford, appeared before Assistant Commissioner Singleton. Mr O'Connor acted as Counsel assisting the Commission. By the time of the applicant's appearance on that day, police had been investigating the deceased's death for almost 12 months, as a result of which they had gathered substantial material concerning the applicant (T27 L43-44). That material included the fact that the applicant had been involved in a series of disputes with the deceased (T28 L7-12).
At the commencement of the hearing Assistant Commissioner Singleton said the following to the applicant (at T1-2 of Annexure 5 of Ex. TWD 1 to the affidavit of Mr Daley sworn on 26 June 2014):
"What evidence you give will be recorded and is being recorded already, and it's being monitored by Commission staff and anyone else that's authorised by the Commission in another room in the building."
Subsequently, he said to the applicant (at T3):
"You are obliged to answer all the questions subject to any objection that is upheld. If you do object to answering the question, or if Mr Bamford makes an objection on your behalf, that has to be done before you give the answer, not after you give the answer. Nevertheless you may be required to give the answer even though you have objected. If you fail to give an answer, having been required by me to do so, you may be prosecuted for failing to give answers as required. You may also be prosecuted if you give false or misleading evidence. You may be prosecuted if you disclose what goes on in this hearing contrary to any direction of the hearing, sorry, of the Commission. Mr Bamford has asked for a direction to the effect that your evidence won't be used against you and that your evidence be treated given under objection in all cases."
Having ascertained that Mr O'Connor had no objection to the giving of the direction which was sought on the applicant's behalf, Assistant Commissioner Singleton then said:
"The Commission directs that any evidence given by this witness or tendered or produced in the presence of this witness or any information that might enable this witness to be identified as a person who has given evidence before the Commission, shall not be published except in such manner and to such persons as the Commission may specify."
[10]
The presence of the police at the applicant's examination
Dets. Fitzhenry and Blanch were present at the Commission for the duration of the applicant's examination. They observed the proceedings via a CCTV link from another office within the Commission's premises although Mr O'Connor said that there was no particular reason for the police not to be in the hearing room (T83 L30). As noted at [22] above, Assistant Commissioner Singleton made reference to the fact that the hearing was being monitored by "… anyone else that's authorised by the Commission in another room in the building".
Neither Det. Fitzhenry nor Det. Blanch took any notes of what was said in the hearing (affidavit of Det. Fitzhenry para. 10; affidavit of Det. Blanch at para. 5). Det. Fitzhenry stated (para. 11 of his affidavit) that his focus at the time was also directed to other matters for which he was responsible. He agreed (T55 L29-31) that whilst "listening or half listening" to the applicant's evidence he was directing officers to do things in relation to the investigation, as well as "attending to … phone calls" and "co-ordinating other resources" (T57 L39-42). He remained for the entire period over which the applicant gave evidence (T57 L44-49).
Det. Fitzhenry said (para. 11 of his affidavit) that he was unable to understand some of the subject matter of the applicant's evidence because it "involved complex commercial dealings". However the issues about which the applicant was questioned were not so restricted. They extended, as I have said, to a number of other matters which Det. Fitzhenry conceded he was able to understand, including the relationship between the applicant and the deceased, its breakdown, and the existence of a motive on the part of Gattellari to kill the deceased (T56 L11 - T57 L17).
Det. Fitzhenry said that apart from the creation of two specific tasks (see [50] and following below) he did not use any part of the applicant's evidence for any investigative purpose, and did not assign any other task to any other person to do anything arising from that evidence (T95 L17-22). In particular, he did not use any part of the applicant's evidence to obtain warrants to search for financial records and the like (T95 L28-31).
Det. Blanch gave evidence that he could not recall any matters of investigative value arising from the applicant's evidence. He had no recollection of having made any use of that evidence in the investigation, and had no recollection of any other officer having done so (para. 7 of his affidavit; T45 L23-24).
[11]
The debrief following the applicant's evidence
What was described in the evidence as a "debrief" was held at the Commission at the conclusion of the applicant's evidence (T83 L16-18). Mr O'Connor said that in broad terms, the purpose of that debrief was to discuss, and obtain the views of investigating police about, the applicant's evidence (T83 L20-23).
Although he had no specific recollection of it, Det. Fitzhenry agreed that it was "very likely" that he was present at the debrief and that he took part in it (T62 L49 - T63 L1). When he was referred to his duty book, he agreed that it recorded his attendance with a number of other persons, including Det. Blanch (T63 L33-48). Det. Blanch agreed that he attended, and accepted that there was some discussion about the applicant's evidence on that occasion (T43 L40-44). He was unable to recall who participated in such discussion, although he had a recollection that Det. Fitzhenry was present at the time, along with officers of the Commission (T43 L48-T44 L1). Det. Howe said that he was not present (T18 L6-9).
[12]
Subsequent discussions about the applicant's evidence
On 2 September 2010, the day after the applicant gave evidence, Dets. Sheehy, Howe and Fitzhenry met at the Commission (T35 L17-19). Det. Sheehy accepted that it was likely that the fact of the applicant having given evidence was discussed, although he could not recall speaking with Det. Fitzhenry about the content of what the applicant had said (T35 L21-39).
Det. Fitzhenry said (para. 12 of his affidavit) that he was present at the Commission on that day. His affidavit contains no reference to any meeting with other police at that time and he was not cross-examined on that issue. Det. Howe accepted that either on that day of the applicant's examination, or on the following day, he discussed the applicant's evidence with Det. Fitzhenry, in the course of which Det. Fitzhenry provided him with information about what the applicant had said (T18 L11-27).
Generally speaking, those involved in the investigation saw no impediment to discussing the applicant's evidence (T23 L11-14; T30 L10-15; T83 L34-39; T90 L29-33). Consistent with this, and although the evidence before me is not precise, what was said by those called before the Commission was discussed between investigating police (T44 L19-38) as was other evidence obtained in the course of the investigation (T62 L32-39).
However, it is important to note that at least as far as Det. Fitzhenry was concerned (he being the only witness asked) there remained a prohibition upon any discussion about the applicant's evidence with lawyers employed by the Director of Public Prosecutions ("DPP") who were briefed to conduct, or carry out work in relation to, the applicant's prosecution. Det. Fitzhenry explained that his discussions with DPP lawyers were limited to other aspects of the investigation and did not extend to discussions about the applicant's evidence before the Commission (T90 L3-6).
It is also apparent that at least some of the police involved saw no impediment to using the applicant's evidence for the purposes of the investigation (T35 L47- T36 L1; T43 L31-33; T45 L30-34). However notwithstanding this, there is evidence that leaving aside the two tasks created by Det. Fitzhenry (discussed at [50] and following below) nothing said by the applicant in his examination was used for any investigative purpose (see [38]-[40] above).
[13]
The release of the transcript of the applicant's evidence
On 24 February 2011 Det. Fitzhenry requested the release, by the Commission, of the transcripts of the evidence of all persons who had appeared before it in relation to the investigation into the deceased's murder, including the applicant. On 1 March 2011 Commissioner Bradley approved that request. A transcript of the applicant's evidence was uploaded to E@glei on 24 October 2011(affidavit of Det. Fitzhenry at para. 22).
A subsequent issue arose regarding the release, to the DPP, of a transcript of the applicant's evidence. It is sufficient for present purposes to note that the transcripts of all persons who had given evidence before the Commission in relation to the investigation were ultimately provided to the DPP, as well as to the applicant. The issue of the extent to which any DPP lawyer has read the transcript of the applicant's evidence is discussed at [65] and following below.
[14]
The tasks created by Det. Fitzhenry
After he had uploaded the transcript of the applicant's evidence onto E@glei, Det. Fitzhenry reviewed it. He created two tasks to be followed up for the purposes of the investigation (para. 26 and following of his affidavit; T60 L24-26).
The first task was created by Det. Fitzhenry on 12 July 2012 and was assigned to Det. Howe. It was in the following terms (affidavit of Det. Howe at para. 40):
"Identify dates that Ron MEDICH - Hayman Island. During the NSWCC hearing involving Ron Medich (attached transcript pg. 43) Medich states that when he came back from Hayman Island was the turning point of his relationship with McGurk. In addition, Medich stated that on this occasion he travelled to Hayman Island with his sons. Identify the dates that Ron Medch (sic) has attended Hayman Island. This will assist in establishing when the dispute between McGurk and Medich occurred."
Despite being created, the task was not pursued. This was because of limited resources, along with the fact that it was assessed as being of low priority (affidavit of Det. Howe at para 41; T19 L5-7).
Det. Howe said (at para. 41 of his affidavit) that he did not read the transcript of the applicant's evidence in association with this task. He agreed that although he did not have a specific recollection of reading the terms of the task, he would have done so when it was allocated to him (T19 L9-36). He understood that the task contained information about what the applicant had said when giving evidence before the Commission about the turning point of his relationship with the deceased (T19 L38-43). He said that he was not aware, before reading the task, what the applicant may have said about that issue (T20 L24-27). He also said that he had been aware of the break down in the applicant's relationship with the deceased from an early point in the investigation (T52 L20-28). Det. Fitzhenry was aware of such break down even before the investigation had commenced (T95 L41 - T96 L4).
Det. Howe also said (T20 L29-42) that since July 2012 he had been largely involved in the preparation of the Brief of Evidence against the applicant which had involved him taking more than 50 witness statements, as well as undertaking a review of other evidence obtained by the police. However, none of those statements related to the task created by Det. Fitzhenry on 12 July 2012, nor did they relate to any evidence given by the applicant about the time at which his relationship with the deceased commenced to break down (T52 L35-T53 L2).
[15]
Access to the transcript of the applicant's evidence by police
Once uploaded to E@glei, Det. Fitzhenry (along with other police) had access to the transcript of the applicant's evidence. Det. Fitzhenry could not recall the number of times he accessed it nor the purpose(s) for which he may have done so (affidavit at para. 23; T62 L20-26). He did say (T 58 L37-39; affidavit at para. 32) that he had recorded aspects of the evidence in a timeline (see [76]-[82] below). The evidence does not establish any other occasion(s) on which any other officer accessed the transcript.
[16]
The search warrants obtained by Det. Howe
In October 2010, on the application of Det. Howe, warrants were issued authorising the search of the applicant's residential and business premises (p.521-527 of the affidavit of Mr Daley of 10 July 2014). Each warrant authorised a search for items which included the following:
"Financial records and documentation, cheque books, receipt books and associated records relating to commercial and financial transactions involving Lucky Gattellari, Michael McGurk, Senad Kaminic, Haissam Safetli, Paul Mathieson, Les Samba, RIV Developments, IC Light, Amazing Loans and associated business entities".
Det. Howe agreed (T22 L10-11) that financial records were a "substantial element" of each warrant. He said that he had not read the transcript of the applicant's evidence (affidavit at paras. 41 and 68). When it was put to him that when applying for the search warrants he was aware of the evidence given by the applicant before the Commission about financial transactions, Det. Howe responded (T22 L24-26):
"I don't recall any information provided by Mr Medich or being aware of any information provided by Mr Medich provided by the Crime Commission about his financial dealings. "
Det. Howe said (T22 L44 - T23 L9) that he believed he would have consulted with other members of the investigation team, but not with staff of the Commission, about what to include in the application for each warrant. When asked whether it was likely that he would have consulted with Det. Fitzhenry about the scope of the search warrants, and the material for which searches were to be conducted, Det. Howe replied (commencing at T23 L18):
"I wouldn't say "likely", that was a very busy period in the investigation. The application for the search warrant was just one of many functions being conducted, it was one that I conducted along with a range of others. Detective Fitzhenry would have been responsible for others. I perhaps wouldn't have showed or conferred with him my application for the warrant as I didn't ‑ it was something that I was confident and capable of doing and I didn't perhaps see a reason to. I don't have a memory of consulting Mark Fitzhenry about it."
Detective Howe said that it was his decision to search for financial documents and that this decision was informed by the nature of the deceased's murder, and not by anything said by the applicant (or anyone else) in evidence to the Commission (T53 L18-50):
Q: On what did you base financial documents?
A: We were investigating a contract killing for which it was - the murder was conducted upon the payment of monies and, on top of that, the believed motive for the murder was a financial dispute. So, therefore, financial documents were relevant to both parts of that investigation, both for the payment of the murder and in support of the motive, the financial dispute.
Q: So there is no misapprehension, "the dispute" being between Mr Medich and Mr McGurk?
A: The deceased and Mr Medich, yes.
…
Q: When you formed the opinion about the necessity for the search warrant to include financial documents, was that in any way affected by way of conduct of Mr Medich on 1 September 2010?
A: Not at all.
Q: Or of any examination of, for example, Mr Gattellari?
A: No."
[17]
The knowledge of DPP lawyers of the applicant's evidence
A number of lawyers from within the office of the DPP have been identified as currently having, or having previously had, some role in the conduct of the applicant's prosecution.
Mr Pickering SC, the Deputy Director of Public Prosecutions, gave evidence (T40 L35-41) that when appointed to that position in February 2012 he was asked by the Director to "essentially make all decisions in the Medich matter". He said that since that time he has made all decisions at a senior level about the conduct of the applicant's prosecution, unless there was a particular issue which warranted the involvement of the Director himself. Mr Pickering said (T40 L24-25) that he has not read the transcript of the applicant's evidence before the Commission. He also said (T40 L27-31) that he knew from conversations with him, that Mr Babb SC, the Director, had similarly not read it.
Apart from his overall supervisory role, Mr Pickering appeared on behalf of the Crown in the sentence proceedings against Gattellari. He said (T40 L43 - T41 L1) that he did not read the transcript of Gattellari's evidence before the Commission for the purpose of appearing in those proceedings.
Shortly after the applicant was arrested, Mr Hobart SC, a Crown Prosecutor, was briefed to oppose an application for bail which was made by the applicant to this Court. Mr Pickering said that Mr Hobart's involvement in matters relating to the applicant's prosecution was limited to appearances in relation to that bail application and "doing some mentoring of the solicitor who was involved in it". He explained that Mr Hobart has not, at any stage, been formally briefed to appear for the Crown, be it in committal proceedings or in the trial. Accordingly, he has never had the brief in any form. Whilst he would necessarily have had access to some material for the purposes of the bail application, such material would have been limited to statements of facts and similar documents which are customarily relied upon by the Crown in applications of that nature (T41 L20-32).
Mr Pickering said (T41 L25-26) that the only person within the office of the DPP who had been briefed to appear in the applicant's committal proceedings or his trial was Ms O'Rourke (T41 L25-27). That may not be strictly correct given the evidence of Ms Harris that she is also a Crown Prosecutor and is briefed, with Ms O'Rourke, to appear for the Crown at the applicant's trial (T9 L11-13). However, nothing turns on Mr Pickering's evidence in this respect.
[18]
The Timeline document
What has been referred to as the "timeline document" ("the timeline") is a chronology of relevant events compiled by the police in the course of the investigation. It is an investigative tool available to the police (T58 L41-46) to which Det. Fitzhenry has added parts of the applicant's evidence (see [59] above).
Det. Howe said (T24 L23-32) that he had made extensive use of the timeline in the investigation although he had not seen any entry in it which related to the evidence of the applicant. He was not able to say what investigative use may have been made of the timeline by other police (T58 L58 L18 - T59 L10).
Within the DPP, Ms O'Rourke has had access to the timeline since about late 2012. She retained a copy of it in her brief up until 23 June 2014. She said (T7 L42-50) that she had accessed the document up to four times, but more likely two or three times, and in doing so had read specific portions of it, but that she had never used it specifically in terms of the applicant (T7 L42 - T8 L2). Ms O'Rourke also explained (T8 L12-17) that her use of the timeline had, as its focus, specific dates and events. This was because she was compiling a report on co-offenders and needed specific details about what occurred on particular days.
Ms O'Rourke stated that she had been unaware that the timeline contained information about the applicant until she was so informed on 23 June 2014 by Ms Lind (affidavit at para.16). Upon being so informed, she directed that her copy of the timeline, along with all other copies of it (including any electronic copies) be collected and returned to the police. She informed the Director of the position and then requested that a letter be sent to the Crown Solicitor notifying him of the position, so that such information could be disclosed to those acting for the applicant in the present matter (affidavit at para.17).
Ms Harris gave evidence that she was first advised of the existence of the timeline on 13 June 2014. She has never accessed it.
Ms Lind has had access to the timeline but has not read any entry in it which refers to the applicant's evidence. Ms Lind directed Ms Rowe to send a disc containing the timeline back to the police on 23 June 2014. When asked how many times she had accessed the timeline Ms Lind said (T14 L42-46) that she could not say with any certainty, but estimated that it would have been in excess of 20 or 30 occasions. When asked how extensively she had used it on those occasions she replied (T14 L50 - T15 L2) that she had used it to look up dates but had not read it in its entirety.
[19]
Gattellari's evidence before the Commission
Gattellari gave evidence before the Commission on three occasions, namely 3 September 2010, 12 October 2010 and 19 October 2010. The transcripts of his evidence have been tendered on the present application. It is necessary to set out some of that evidence in light of the submissions made on behalf of the applicant.
At T5 of Gattellari's evidence on 3 September 2010 (Annexure 5 of Ex.TWD 1 to the affidavit of Mr Daley sworn 26 June 2014) the following is recorded:
"Q:The Commission has had the benefit of having spoken with Mr Medich. He explained that his company Riv Group has been loaning money essentially through to the lighting company and has been providing more or less a line of credit now for sometime. Is that correct?
A: That is correct."
A T6 Gattellari was asked:
"Q: Mr Medich has indicated that there is a security over that line of credit. What security does he have in relation to that matter?
A: With the charges on everything. We can't dispose of anything without his permission."
The following is then recorded at T8:
"Q: Well Mr Medich has indicated that the electrical companies are soaking up a substantial portion of his wealth at present and he's indicated previously that he's not extending any further credit to the company at the moment. Is that the situation?
A: Well we're not asking for anymore credit at the moment."
At T49 Gattellari was questioned by Mr O'Connor about financial transactions between himself and Safetli including, in particular, a transaction in which monies which originated from the applicant passed through Gattellari's account and were ultimately applied to a deposit on a property purchased by Safetli. At T51 the following is recorded:
"Q …. but I'm just asking whether Mr Medich was involved in the loan ..
A No, not at all. He has no idea I lent the money to anybody. I lent Jim Emirian money which Mr Medich has no knowledge of.
Q He has an idea that you've lent the money because he has been told by this Commission.
A Well he has an idea now and then.
Q And he was adamant that he gave no authority for such a transfer to occur.
A That is correct, that is correct".
In respect of the issue of the breakdown of the applicant's relationship with the deceased, the following is recorded at T22:
"Q: Do you remember what were the events that led to the deterioration of their relationship?
A: Well I think court cases and trying to get money from one another would be a good indication that the friendship had soured.
Q: Those cases, on my instructions, didn't commence until mid - March which I concede is the early part of 2009. Is that the area of time you were referring to?
A: Look let me just make one thing to you (sic). You've given me dates, I cannot remember dates. If I tell you that I met someone, if you said to me what day in May 2009, I wouldn't have the faintest idea. I genuinely don't remember. If I made the statement that either Ron might have said something to me, or I may have seen something, I don't know. If I made that statement it's probably - if that's the date I said it happened, maybe that was the date.
Q: No, no, no, I don't think you understood my question. I just told you that the litigation between McGurk and Medich commenced on the 18th March 2009 and that was in response to you telling me that the event that soured their relationship was the litigation commenced in early 2009. I'm just asking you - I'm putting this to you, is that the litigation you are referring to?
A: Well it could have been, there were so many of them."
[20]
The taking of Gattellari's statements
The task of taking statements from Gattellari was allocated to Dets. Groves and Watson. Between 19 October 2010 and 14 December 2011 Gattellari made a series of statements and participated in an electronically recorded interview. At an earlier stage of the investigation, before giving evidence, he had made a Statutory Declaration in which he had set out aspects of his business relationship with the applicant.
The statements made by Gattellari were set out by Det. Watson in his affidavit (commencing at para. 17) as follows:
1. a statement made on 19 October 2010;
1. a statement made on 22 October 2010;
2. a statement made between 22 October 2010 and 27 October 2010;
3. a statement made between 2 November 2010 and 25 November 2011;
4. an interview conducted on 20 April 2011;
5. a statement made between 28 April 2011 and 28 November 2011; and
6. a statement made between 21 July 2011 and 25 November 2011; and
7. a statement made on 14 December 2011 (in the taking of which Det. Watson was not directly involved).
Noting that Det. Watson had played no part in obtaining the statement in (viii) (as to which see [100] below) Det. Watson explained in his affidavit that:
1. the statements in (i), (ii) (iii) and (iv) above were each in the form of a "free narrative" in which Gattellari recounted his involvement, and that of others, in the deceased's murder (paras. 18, 21 and 24);
2. the interview in (v) consisted of Gattellari being recorded as he read the statements in (i), (ii) and (iii) (para. 32);
3. the statement in (vi) was the result of audio and video evidence being played to Gattellari, who was then asked to clarify the meaning of aspects of that material (paras. 36-37); and
4. the statement in (vii) was the result of Gattellari being presented with information, including letters, diaries, ledgers and banking documents, and then being asked to comment upon various aspects of their contents (paras. 42-43);
By reference to his duty book for 19 October 2010 Det. Watson agreed (T69 L18-21) that various meetings took place between about 10:45am until sometime after 2:00pm on that day. When asked whether he knew, prior to taking Gattellari's first statement, that it was expected that Gattellari would implicate the applicant, Det. Watson said (T69 L25-28):
"From my memory I wasn't quite sure what was going to be ‑ to be taken in his statement, I was just ‑ my role was just going to be statement taker, and I knew that it was at his request. So I didn't really turn my mind to much at that point."
[21]
The charging of the applicant
The applicant was originally charged with solicit to murder, and later with murder. Det. Sheehy gave evidence that the decision to charge the applicant with murder was made by the DPP (T36 L21-23). He was unable to recall who made the decision but recalled that the matter was "in the hands of Mark Hobart at the time" (T36 L25-27). Depending upon what input Mr Hobart may have actually had into that decision, the evidence of Det. Sheehy in this respect appears to be at variance with that of Mr Pickering who said (T42 L1-6) that as a matter of policy, the only person within the DPP who is able to provide advice in a matter involving an allegation of murder is the Director or the Deputy Director. He said that there was no record that the current Director, Mr Babb SC, or the former Director, Mr Cowdery QC, had ever given such advice. The evidence of Det. Sheehy in this respect also appears to be at variance with that of Mr Pickering SC as to the limited involvement of Mr Hobart (at [68] above).
Ms O'Rourke said (T8 L21-23) that she understood that the decision to charge the applicant with the deceased's murder may have come as a consequence of advice given by someone within the DPP but that because she was not involved in the matter at that point, she could not say specifically from whom.
To the extent that the evidence given in relation to this issue by various witnesses might not be consistent, I am satisfied that nothing turns on it.
[22]
Submissions of the applicant
Senior counsel for the applicant submitted that if it were established that the circumstances were such that it could not be said that the applicant's trial would produce no miscarriage of justice, a stay should be granted. In support of the proposition that such circumstances were established, he made a number of submissions.
It was firstly submitted that the Commission's conduct in the present case was unlawful in a number of respects. These were said to include examining the applicant at a time when he was a suspect, and allowing the police to be present in the course of that examination. However, senior counsel for the applicant expressly acknowledged that even if aspects of the Commission's conduct were in fact unlawful, that did not determine the matter. He accepted that the question of whether a permanent stay was warranted was to be determined according to the application of the relevant test. He submitted that such test was in the terms expressed in [107] above.
The primary submission advanced on behalf of the applicant was that the presence of Dets. Fitzhenry and Blanch at the applicant's examination, along with the fact that both officers remained involved in the investigation thereafter, warranted a permanent stay of the applicant's trial.
It was submitted that as a consequence of their presence at the examination, both officers had necessarily become privy to the applicant's account of events which were relevant to the case against him. Senior counsel also relied on the fact that Det. Fitzhenry was the officer in charge of the investigation and that Det. Blanch had been the informant when the applicant was charged. He submitted that given their respective positions, their presence at the applicant's examination was at odds with the principle respecting proof by the prosecution, unaided by the accused: see Lee v The Queen [2014] HCA 20; (2014) 308 ALR 252 at [45] ("Lee"), citing X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92. He submitted that the availability, to the police, of information derived from the applicant's evidence had operated to upset the balance between the prosecution and an accused: Lee at [32].
Senior counsel submitted that a combination of all of these circumstances resulted in the investigation becoming "tainted", and that this justified the making of an order for a permanent stay of the applicant's trial.
[23]
Submissions of the Crown
The Crown emphasised a number of fundamental principles in relation to the granting of a permanent stay of a criminal trial, and in doing so submitted that the applicant's formulation of the relevant test was incorrect. It was submitted that in order for a permanent stay to be granted the applicant was required to establish that in all of the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive, as to constitute an abuse of process. The Crown submitted that for a number of reasons, that test had not been satisfied.
The Crown submitted that the applicant's primary position amounted to an argument that the trial should be stayed simply because an opportunity had arisen, as a consequence of the presence of Dets. Fitzhenry and Blanch at the applicant's examination, for the police to build a case against the applicant based upon his own evidence. The Crown submitted that this was tantamount to the proposition that the applicant was required to do no more than establish some degree of "presumptive prejudice" in order to be granted a permanent stay. It was submitted that this was contrary to authority.
Similarly, the Crown argued that the applicant's submission that the investigation had become "tainted" was really another way of saying that the applicant was entitled to a permanent stay because of what might theoretically have happened in the investigation. It was submitted that such proposition was at odds with the terms of the appropriate test, which required that the Court be satisfied that the continuation of the proceedings would (as opposed to could" involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of powers. It was submitted that bearing in mind what was said to be the correct test, the focus should necessarily be upon what had in fact occurred following the applicant's examination, rather than what might have occurred.
The Crown submitted that there had been no "tainting" of the investigation at all and pointed, in particular, to the evidence that nothing said by the applicant had been used for any investigative purpose. It was submitted that the mere fact the police discussed the evidence, and/or contemplated that they were at liberty to use it, fell well short of justifying a conclusion that the investigation had been tainted at all, let alone in a manner which warranted the granting of a permanent stay.
[24]
Submissions of the applicant in reply
In reply, senior counsel for the applicant emphasised that the applicant's primary position was that to obtain the order sought, he needed to do nothing more than establish the presence of Dets. Fitzhenry and Blanch at the applicant's examination, and their continuing involvement in the investigation.
Senior counsel also submitted that the decision in Lee (supra) made it clear that the granting of a permanent stay was not dependent upon establishing unfairness. He submitted that the key issue in Lee was that the trial had been altered in fundamental respect by the prosecution having in its possession the evidence which had been given by the appellants before the Commission. It was further submitted that although Lee did not involve an application for a stay, the decision necessarily informed the circumstances in which such a remedy might be granted.
Finally, senior counsel submitted that the real vice concerning Gattellari's evidence was that important aspects of the applicant's evidence had been disclosed to him. Accepting that to be the case, it was submitted that such vice was not able to be remedied by the manner and form in which any subsequent statements may have been taken.
[25]
The general principles and the applicable test.
There are a number of fundamental principles which govern the exercise of the discretion to grant a permanent stay of a criminal trial.
Firstly, the categories of circumstance which may justify such an order are neither closed, nor capable of exhaustive definition: R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 at [33]; 723.
Secondly, a stay of proceedings of a criminal trial is an extreme remedy. It will be reserved for the most exceptional cases: Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 at 31 per Mason CJ.
Thirdly, the onus is upon an applicant to establish the necessary factual basis for the making of such an order: Boulos v R [2008] NSWCCA 119 at [46]. That onus is necessarily a heavy one: Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256 at [9].
In the present case, the parties are at issue as to the precise terms of the test which is to be applied. In Edwards (supra), having made reference to the earlier decision of the majority in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, the High Court (Hayne, Heydon, Crennan, Kiefel and Bell JJ) formulated the relevant test in the following terms (at [23]; 720):
"A majority of the court approved each of the formulations of the test applied by members of the Court of Appeal; "whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness", or whether the "continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process". Their Honours observed that it had been made plain by the Court of Appeal that the court would only be satisfied that continuation of the proceedings constituted an abuse in an exceptional or extreme case" (emphasis in original).
In R v CB; MP v R [2011] NSWCCA 264 McClellan CJ at CL, having referred (inter alia) to the decisions in Edwards and Jago said (at [119]-[120]:
"The principles which a court must apply when considering an application for a permanent stay of a criminal trial derive from the 'inherent power of courts to prevent abuses of their processes' (Mason CJ, Jago at 25). Any process which will result in an unfair trial may be a relevant abuse. However, to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial of such a nature that nothing a trial judge can do can relieve against its unfair consequences (Barton v The Queen [1980] HCA 48; 147 CLR 75 at 111).
The members of the court in Jago emphasised, in the words of Gaudron J, 'the limited scope of the power to grant a permanent stay' (which) 'necessarily directs an inquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied. The purpose of the power 'directs attention to the legal propriety of the process or proceedings as distinct from any broad consideration of the general merits of the case'. (p 77) Gaudron J recognised that the decision as to whether or not to grant a permanent stay must be made recognising that a trial judge has a duty to ensure a fair trial and to that end 'has a number of discretionary powers which may be exercised in the course of a trial' 'the existence and availability of those powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all various powers and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay' (p77-78)".
[26]
The presence of the police at the applicant's examination
In X7 (supra) the High Court considered the question of whether the provisions of the Australian Crime Commission Act 2002 ("the ACC Act") permitted an examination of a person charged with an indictable offence against the Commonwealth, in circumstances where the proposed examination encompassed the subject matter of the charges. In the context of that question of statutory construction, Hayne and Bell JJ (with whom Kiefel J agreed) made a number of observations regarding important aspects of the criminal process. In particular, their Honours said (at [124]; 142-143):
"Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, accordingly only to the strength of prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge".
The subsequent decision of the High Court in Lee and anor. v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363 ("Lee v NSWCC") also involved a question of statutory construction. The respondent had sought an order for examination pursuant to the provisions of s. 31D of the Criminal Assets Recovery Act 1990 in circumstances where the proposed examination was to encompass matters relevant to offences alleged against the appellants. The majority (French CJ, Crennan, Gaegler and Keane JJ) concluded that the proposed examinations could proceed. French CJ, in reference to the passage in X7 (at [124]; 142-143), said (at [54]):
"It may be accepted that the examination process under the Criminal Assets Recovery Act may, if it touches upon matters the subject of pending criminal charges against the examinee, affect the accusatorial character of the criminal process. Even if the responses of the examinee to questions put to him or her were kept secret and were solely exculpatory or did no more than disclose defences to the charges, the examinee could be said to have suffered a forensic disadvantage. The nature of that disadvantage was discussed in the joint judgment of Hayne and Bell JJ in X7. I do not, with respect, disagree with anything their Honours said in the description of that disadvantage".
[27]
Discussions between Police
The majority, if not all, of the police involved in the investigation believed that there was no impediment to discussing the applicant's evidence. Although the evidence of the police on this subject is not completely clear, I am satisfied that some discussions took place, at the very least, at the debrief.
The mere fact that evidence was discussed is not sufficient to warrant a stay of the applicant's trial, nor is the fact that the police considered that there was no impediment to the use of the applicant's evidence. The more important consideration is the use, if any, to which that evidence was put. For the reasons I have already given, it was put to no use by Dets. Fitzhenry and Blanch, and there is no evidence of it being put to use by any other officer.
[28]
The application for Search Warrants
Det. Howe gave evidence that he had not read a transcript of the applicant's evidence. He said that his application for Search Warrants was not influenced by anything said by the applicant in that evidence. He also said that his application was not influenced by any document(s) which may have been produced to the Commission by the applicant's then Solicitor. I accept Det. Howe's evidence in those respects. As he pointed out, he was investigating an alleged contract killing. It is unsurprising, in those circumstances, that the production of financial documentation (in respect of both the payment for the murder and the relationship between the applicant and the deceased) would be sought.
[29]
Gattellari's evidence
The applicant relied upon a number of passages of the questioning put to Gattellari in his examination before the Commission which, it was submitted, indicated that important aspects of the applicant's evidence had been disclosed.
The first instance is the passage at [84] above concerning the provision, by Riv Group, of credit. The question put by Mr O'Connor made reference to the fact that the Commission had previously had "the benefit of having spoken" with the applicant. That was an obvious reference to the applicant's earlier examination. However as the Crown pointed out, the investigating police were in possession of information in relation to these financial arrangements long before, and independently of, anything said by the applicant in his evidence.
Firstly, in a Statutory Declaration made on 11 September 2009, Gattellari himself had said (inter alia):
"I have immense financial dealings with Ron Medich, he's lent my businesses a lot of money. He's now taken control of the electrical business. He owns the business, and I don't own the business anymore. The electrical business was known as Rivercorp, which is now Riv Group".
Secondly, there were references to these financial arrangements in telephone conversations between Gattellari and the applicant which were recorded by the police in 2009 and 2010 prior to the applicant giving evidence (see paras. [136]-[137] and [797]-[798] of Gattellari's statement signed on 28 November 2011). Although in the course of that statement Gattellari provided further information in relation to such financial dealings by reference to those conversations, the dealings themselves were clearly known to the police as early as 2009. I am not satisfied in these circumstances that anything said by the applicant about that subject when examined resulted in Gattellari's evidence being forthcoming.
It is also significant that in the statement obtained between 21 July 2011 and 25 November 2011 (at 93 above) Gattellari made reference to these same financial arrangements. As Det. Watson explained (at 94 above) this statement was made as a consequence of Gattellari being provided with material by the police and being asked to comment on it. That material did not include anything said by the applicant.
[30]
The roles of Dets. Groves and Watson in obtaining Gattellari's statements
Neither Det. Groves nor Det. Watson were present at the applicant's examination. Because of their involvement in the investigation they had some appreciation of the subject matter which was to be covered in any statement(s) obtained from Gattellari. However, that does not support a conclusion that the applicant's evidence before the Commission was used, in any way, in the task of obtaining such statements. Both officers rejected the suggestion that the briefing prior to taking Gattellari's first statement included any reference to the applicant's evidence. There is no reason not to accept the evidence of each officer in that respect. There is no other evidence which establishes that the applicant's evidence was used, in any way, in the process of obtaining Gattellari's statements. I am satisfied that it was not.
Moreover, the manner in which Gattellari's statements were taken, and in some cases the reason(s) for which they were taken, tend completely against a conclusion that the applicant's evidence was used in that process. As set out in the respective affidavits of Dets. Groves and Watson, some of the statements were generally taken as a free form narrative in which Gattellari simply recounted his involvement, and that of others, in the deceased's murder. Others were taken that form, and came about as a consequence of the police seeking clarification, either of audio/visual material obtained in the investigation or of something that Gattellari had previously said. There is no indication at all that the applicant's evidence was used in the course of that process.
[31]
Knowledge of DPP lawyers of Gattellari's evidence and statements
Ms. O'Rourke, as well as Ms Harris and Ms Lind, have had access to Gattellari's evidence, or at least aspects of it. That is to be expected, given the reliance placed upon Gattellari's evidence in the Crown case. As Ms O'Rourke properly pointed out, it is necessarily part of her trial preparation to familiarise herself with any statement, in whatever form, previously made by Gattellari. That is so in the case of any witness. It is all the more so when the evidence of that witness is significant.
For the reasons I have already expressed, I am satisfied that no material part of the applicant's evidence before the Commission was put to Gattellari when he gave evidence, and that nothing said by the applicant in his evidence was used for the purposes in obtaining Gattellari's various statements. In those circumstances, and bearing in mind the unchallenged evidence of Ms O'Rourke, Ms Harris and Ms Derrig that they have not read the transcript of the applicant's evidence, there is no warrant to restrict their access to the statements and evidence of Gattellari. The fact that they have had such access provides no basis for the orders sought by the applicant, particularly as that material will obviously form a significant part of the basis of the cross-examination of Gattellari at any trial, as it did at the committal proceedings.
[32]
The applicant's position at trial
On the evidence before me I am not satisfied that any aspect of the applicant's evidence before the Commission, or anything that has occurred in association with that appearance, has left him in a position where he is unable to determine what course he might wish to take at any trial. As I have noted at [26] above, the applicant made no admissions and nothing he said directly implicated him in the deceased's murder. The applicant has made the general content of his defence known, both in the case statement as well as in his statement to the committing Magistrate. There is no evidence before me which supports a conclusion that the applicant's capacity to defend himself has been altered or compromised by his appearance before the Commission, or anything relating to that appearance.
[33]
A temporary stay of proceedings
It was submitted on behalf of the applicant that in the event that I rejected the application for a permanent stay of proceedings, I should order a temporary stay on the terms set out in [114] above. In light of the views I have reached in relation to Gattellari's evidence, the provision of his statements, and the knowledge of this material on the part of the Crown Prosecutors and their instructing solicitors, there is no warrant for the making of an order for a temporary stay. To the extent that the applicant's submission relied upon the proposition that any DPP lawyer(s) had accessed the applicant's evidence, the evidence is completely to the contrary. I am satisfied that no DPP lawyer has read any part of that evidence.
[34]
ORDERS
For the foregoing reasons I make the following orders:
1. The applicant's notice of motion dated 18 June 2014 is dismissed.
[35]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 April 2018
The Crown proposes to call Fortunato ("Lucky") Gattellari ("Gattellari") to give evidence against the applicant at his trial (T6 L25-27). Gattellari pleaded guilty to the murder of the deceased (on the basis of being an accessory before the fact) and has been sentenced: R v Gattellari; R v Kaminic [2013] NSWSC 1097.
At the commencement of the hearing, Mr O'Connor informed the applicant that the Commission was conducting enquiries into the deceased's murder. As the hearing proceeded, he questioned the applicant about a range of matters, including:
1. his previous dealings with the deceased;
2. the breakdown of their relationship;
3. his relationship with Gattellari;
4. his financial affairs; and
5. his movements on the date of the deceased's death.
No admissions were made by the applicant as to any involvement in the deceased's murder and nothing he said directly implicated him in the murder.
Because of the issues raised on the present application, it is necessary to make reference to some of the applicant's evidence.
The applicant was asked about his knowledge of the existence of the covert recording (referred to at paras. (47) and following of the Crown case statement) and the effect of such knowledge upon his relationship with the deceased. At T75 the following exchange took place between Mr O'Connor and the applicant:
"Q: But the point of my questioning is that there is evidence to suggest that you knew of its existence. Not believed that it around (sic), actually knew it existed as of the 3rd of March.
A: I don't know, because I'd have to look back at all the events.
Q: Well, trust me, that's what came out from the ICAC inquiry.
A: Okay, well that might be right."
The reference in that answer to the "ICAC enquiry" was a reference to an enquiry conducted by the Independent Commission Against Corruption into various allegations arising from the covert recording. A copy of the Commission's report is Exh. 11 in the present application.
A further exchange took place (commencing at T81) in relation to the covert recording:
"Q: Just a minute. Within 3 weeks of your learning of that tape you've commenced legal proceedings against him. And I'm suggesting to you that it is in that 3 week period that the relationship goes from one with its troubles but, overall, a good one to a relationship that has basically come to an end. That's right isn't it?
A: Well it is if I can't get my monies back, obviously. And that's why I went to court.
Q: That's the way you saw it?
A: Yeah, well what I had to do was to try to find out, because if he's not going to give me the monies back I've got to get in to (sic) his companies. And the advice that I got was the best thing to do was to get an ex parte application. That's what I did.
Q: And the relationship is off?
A: Well, obviously, it'd be off with him once I do that.
Q: That was definitely the end of your relationship?
A: Yeah."
In terms of his relationship with Gattellari, the applicant gave the following evidence (commencing at T85):
"Q: And how would you describe your current relationship with Lucky Gattellari?
A: Well it's okay. But we're (sic) in these electrical companies and whatever and I'm actually a little but not happy with the invest (sic) that he got me into, that I've invested money in.
"Q: Okay. How much have you invested in those companies?
A: Well it'd probably be over $16 million."
He was then asked (at T86) about financial arrangements between himself and Gattellari:
"Q: Do you or your companies pay him (Gattellari)?
A: No, I don't pay him. See, all the loans go through his company, you know, for RW (sic) developments.
Q: So, are you saying, let me get this correct. When you say all the loans, I don't want to be at cross purposes here, are you talking all loans per se to people at large that Lucky's dealing with?
A: No, no, no, …No, no, no.
Q: Or all loans in relation to the electrical company?
A: Everything to do with the electrical company goes through him because he was the organiser of the whole thing."
This topic of financial arrangements was the subject of further questioning (at T88):
"Q: And those payments are for, are the mechanism or the vehicle by which you transfer money in the electrical company?
A: Yeah, everything goes through Riv Developments"
…..
"Q: Who's Riv?
A: That's his company.
"Q: Rocky's. Sorry, Lucky's?
A: Yeah."
During the applicant's evidence, calls were made for the production of documents. On 13 and 23 September 2010 documents were produced to the Commission by Mr Bamford in response to those calls. Those documents were not passed on to the police (affidavit of Mr O'Connor at paras. 11-12).
The evidence of Dets. Fitzhenry and Blanch that no investigative use was made of the applicant's evidence was generally consistent with the assessment of Det. Sheehy that the examination of the applicant was not a particularly significant development in the investigation (T35 L4-6).
The second task, created by Det. Fitzhenry on 19 February 2013, was entitled "Investigate defence (Medich) case theory Gattellari". Det. Fitzhenry assigned this task to himself and Det. King.
Det. King, whose affidavit was read but who was not cross-examined, stated (at para. 10) that he had not read the applicant's transcript when carrying out duties in response to the task. Det. Fitzhenry said (para. 27 of his affidavit) that the task was created "as a result of the applicant's defence case submissions" (see above at [11]). Det. King submitted nine products relevant to that task and Det. Fitzhenry submitted eleven. Those eleven products were uploaded to E@glei (T59 L20-36).
Det. Fitzhenry explained (T61 L6) that this second task "would have came (sic) out of (his) review of the transcript". He also agreed (T60 L49 to T61 L2) that the investigation of the defence case theory was undertaken in order to arm the prosecution with material to meet such a case.
However Det. Fitzhenry said (at para. 28 of his affidavit) that he did not use the applicant's transcript, or his knowledge of its contents, when obtaining products in relation to this task. He said (T61 L22-24; T94 L26-32) that the transcript was used for "background information" and that he had not reviewed it when undertaking the task.
When asked whether he had seen the documentation produced by the applicant's then solicitor following the applicant's examination ([34] above) Det. Howe said (T22 L39-42) that he was not aware if such documentation had been provided, and said that if it had been provided, he had not seen it. Det. Fitzhenry said that he had no recollection of telling Det. Howe that production of documents had even been sought by the Commission (T58 L16-18).
Ms O'Rourke was briefed in late February 2012. She appeared for the Crown at the committal proceedings and is to appear at the trial. She first received the brief of evidence on 7 May 2012, which at that time included the transcript of the applicant's evidence before the Commission (affidavit at paras. 4 and 5). To the best of Ms O'Rourke's recollection she became aware that the transcript was included in the brief at some time between May and August 2012. She explained (at paras. 6 and 7 of her affidavit) that upon reading the decision of Garling J in R v Seller; R v McCarthy [2012] NSWSC 934 she requested her then instructing solicitor, Ms Derrig, to retrieve the transcript of the applicant's evidence from her brief. Ms O'Rourke said (at para. 10 of her affidavit) that she had not read, and had no recollection of ever actually seeing, the transcript of the applicant's evidence before its retrieval by Ms Derrig.
Ms Derrig recalled (para. 5 of her affidavit) a conversation in which Ms O'Rourke had told her that they were not permitted, and/or should not read, transcripts of any evidence given before the Commission. As a consequence, Ms Derrig collected all such transcripts from Ms O'Rourke's chambers and placed them, along with her copies of the same material, on a shelf in her office, separate from her copy of the brief. Ms Derrig said (para. 10 of her affidavit) that she did not read any of the transcripts of evidence given by anyone before the Commission.
Ms O'Rourke explained (T6 L29-42) that she considered it relevant, in her capacity as Crown Prosecutor, to have regard to all of Gattellari's prior statements in order to assess his credit. She said that as part of that exercise she had reviewed (inter alia) the transcripts of Gattellari's evidence before the Commission, and was not aware of any reason why she should not have done so. She pointed out (T6 L44-46) that Gattellari had been "cross-examined extensively" on the content of those transcripts in the committal proceedings.
Ms Harris, who is briefed to appear with Ms O'Rourke at the applicant's trial, has not read, and has not had access to, the transcripts of the evidence of Gattellari or the applicant (para. 5 of her affidavit) although she said (T10 L14-15) that she had read documents containing excerpts of the former. When asked to identify such document(s), Ms Harris referred (T10 L16-25) to a summary of Gattellari's evidence (including his evidence before the Commission and his evidence at the committal hearing) which had been prepared by Ms Lind, another solicitor from the DPP.
Ms Lind gave evidence that she commenced working on the applicant's prosecution in May 2013 but had not had access to, and had not read, a transcript of his evidence before the Commission. She said (T12 L26-46) that she had read the entirety of the transcripts of Gattellari's evidence and had used (inter alia) those transcripts to prepare the document to which Ms Harris referred. The remaining persons from within the office of the DPP whose affidavits were read, but who were not cross-examined, were Ms Rowe, Ms Carmody and Ms Rowbotham. Each said that they had not read the transcript of the applicant's evidence.
Having regard to the evidence of those lawyers from the DPP who are, or who have been, involved in the applicant's prosecution, I am satisfied that although some of them may have been able to access a transcript of the applicant's evidence, none of them have read it.
When assigned to work on the applicant's prosecution on about 11 June 2014, Ms Rowe was provided with a disc containing the timeline. On 20 June 2014 she accessed the document and observed an entry referring to the applicant and the Commission. She did not read the entry and then closed the document (paras. 6-8 of her affidavit).
The following is then recorded at T24:
"Q: Now, I'm going to take you through some events that the Commission has ascertained were significant events in relation to the souring of the relationship between Medich and McGurk and after I've gone to each events (sic) I'm going to ask you some questions about it. As of the 3rd of March 2009 there is evidence that Mr Medich learned or knew at that time that McGurk had taped some private conversations between Mr Medich and Mr McGurk and had threatened to release them to third parties. Now, did Mr Medich discuss that matter with you?
A: No. Did you say he'd learned it from me?
Q: No, no. I said he was aware as of the 3rd of March of the existence of the tape.
A: No, I had no knowledge of any tape."
…
"Q: …As of the 3rd of March there is evidence that Mr Medich knew of the existence of the tape between him and McGurk that had been secretly taped. Now we don't know how he learned about it, but there is positive evidence to suggest he knew of its existence as of the 3rd of March. Now, my question is did Medich discuss that matter with you at all?
A: Are we talking about the 3rd of March before he was actually killed?
Q: Yes, the 3rd of March 2009?
A: No, I knew nothing about any tape."
In the course of his evidence on that day, Gattellari was asked whether he had asked Safetli to kill the deceased. He replied (at T49):
"I have asked nobody to kill nobody."
When appearing before the Commission on 19 October 2010 Gattellari indicated that he wished to assist the investigation into the murder of the deceased. At the conclusion of the proceedings on that day, Assistant Commissioner Singleton said to Gattellari:
"The officers will arrange to put you in touch with police for an interview now, here, somewhere in the building".
Before taking Gattellari's first statement Det. Watson was aware that a number of hearings had been conducted at the Commission, one of which involved the applicant (T69 L45 - T70 L1). However, when asked whether he was made aware of the applicant's evidence before speaking with Gattellari, Det. Watson responded (T70 L5-6):
"Not from my memory, no, I wouldn't have been briefed on specifics in hearings of definitely Mr Medich at that point, no. "
Det. Watson was then asked about whether he had been briefed in relation to the subject matter to be covered in any statement taken from Gattellari (T70 L17-26):
"Q. But before interviewing Mr Gattellari, certainly Det. Fitzhenry took part in briefing you about matters that might be the subject of Mr Gattellari's statement?
A. I don't believe so. From my memory all those briefings were how the actual statement was to be taken, not ‑ especially the first statement and probably the first, second and third statements. It was a ‑ we weren't specifically targeting questions, it was more he tells us and we were just purely statement takers. So the briefing by Fitzhenry would have been just reiterating to us that ‑ how to take the statement and let him ‑ don't tarnish his evidence, let him tell us in his own words, so we can't be criticised. That was, basically, it. "
Det. Watson agreed (T71 L28-35) that prior to taking Gattellari's first statement he had "some idea" of the subject matter which was to be covered:
"A. That's a yes. But in saying that, I was ‑ I'd been part of the investigation for some time, so, obviously, in my mind to answer that correctly is yes. But, as I have stated before, it wasn't a probing, it wasn't a question and answer type of statement, so. Obviously I'm aware of the investigation that's on foot, but ‑ yeah."
Det. Watson also acknowledged that he was aware, prior to taking Gattellari's statements, that there was evidence to implicate Gattellari in the deceased's murder (T72 L6-8). He was also aware that a matter of interest to the investigation was establishing a connection between the applicant and the deceased's murder (T72 L37-44). However, Det. Watson unequivocally rejected the suggestion (T73 L6-11) that he had been made aware, prior to 19 October, of parts of the substance of the applicant's evidence to the Commission. He said that he was still not aware of the substance of anything said in any hearing before the Commission. He specifically denied the suggestion that he enquired about what account the applicant had given of various matters in the course of being examined (T73 L13-21):
"Q. Knowing that one of the topics of interest in the statement that Mr Gattellari was to give was the possible relationship between Mr Medich, Mr Gattellari and the murder of Mr McGurk, I suggest you would have inquired prior to commencing the interview as to what Mr Medich's account was?
A. No, I didn't. No, I never inquired about ‑ because I didn't ‑ it wouldn't have been relevant for me at that point, definitely not. So I definitely made no inquiry about what was said in a Crime Commission hearing because the witness, the third time he came to the Commission, he adopted they were false anyway, so it didn't concern me. "
Det. Groves, who had been a member of Strike Force Narrunga since its creation, generally corroborated the evidence of Det. Watson as to the manner in which Gattellari's statements were obtained. In respect of the final statement of 14 December, Det. Groves explained (at para. 21 of his affidavit) that it had been prepared as a consequence of Gattellari being asked a number of questions to clarify what he had earlier said.
Det. Groves said that along with Det. Watson he attended a briefing on 19 October 2010, the subject of which was the "interview plan" concerning Gattellari (T74 L28; T75 L6-8). At that time he was briefed on the subject matter to be covered in any interview with Gattellari (T75 L19-22). He agreed (T75 L28-36) that as a member of Strike Force Narrunga he had been kept informed of developments in the investigation by Dets. Fitzhenry and Blanch.
Det. Groves said (T76 L5) that when he attended the Commission on 19 October 2010 he was aware that the applicant had previously been the subject of an examination. He also said (T76 L15-19) that he was aware, prior to speaking with Gattellari on that day, that police were already in possession of substantial evidence which implicated Gattellari in the deceased's murder. He agreed (T76 L30-32) that prior to speaking with Gattellari for the first time he was briefed as to the state of the evidence concerning the applicant's possible involvement in the deceased's murder. However, he rejected (T76 L34-36) the suggestion that such briefing included any reference to the applicant's evidence before the Commission. He agreed that the applicant's account would have been a subject of interest (T76 L45) but could not recall, one way or the other, whether he had read the transcript of the applicant's evidence (T77 L 36-42).
The process of obtaining Gattellari's various statements was conducted over more than 12 months. Det. Groves agreed (T77 L7-20) that during that period he had many conversations with Dets. Fitzhenry and Howe about the subject matter of the investigation generally, and about the evidence of Gattellari in particular.
In the event that this primary submission was rejected, senior counsel submitted that a number of other matters provided a further basis upon which to grant the order sought. Such matters included the following:
1. the fact that investigating police were unaware of any impediment to discussing, or using, the applicant's evidence, along with the fact that such discussions had taken place;
2. the uploading to E@glei of the transcripts of the evidence of the applicant and Gattellari;
3. Det. Fitzhenry's references to the applicant's evidence when creating tasks, and the adding of aspects of that evidence to the timeline;
4. the circumstances surrounding the application by Det. Howe for the issue of search warrants;
5. the disclosure, to Gattellari, of what were said to be significant aspects of the applicant's evidence;
6. the circumstances surrounding the taking of Gattellari's statements; and
7. the fact that Ms O'Rourke had reviewed the transcripts of Gattellari's evidence along, with the fact that Ms Harris and Ms Lind had some access to that material.
It was further submitted that as a consequence of his appearance before the Commission, and the events which had subsequently taken place, the applicant was not able to determine what course he would adopt at any trial, and would be forced to consider that issue in light of the answers he had been compelled to give. It was submitted that as a consequence, any trial had been fundamentally altered, thus warranting a permanent stay: X7 (supra) at [124] per Hayne and Bell JJ.
Finally, and in the event that these submissions were rejected, senior counsel for the applicant argued that a temporary stay of proceedings ought be granted, until such time as the DPP undertook:
1. not to rely upon the evidence of Gattellari; and
2. to appoint new counsel and instructing solicitors, who were not privy to the evidence given before the Commission by the applicant or Gattellari.
In particular, the Crown submitted that save for the two tasks created by Det. Fitzhenry (one of which was not pursued, and the other of which had arisen, on the Crown's submission, from the provision of the defence case statement) there was no evidence of any investigative step having been taken by the police in the aftermath of the applicant's examination. It was also submitted that nothing said by Gattellari, be it in his evidence or his statements, had emanated from anything said by the applicant, and that Gattellari's his ultimate decision to co-operate with police was not the consequence of any evidence which he understood that the applicant had given to the Commission. The Crown also submitted that quite apart from the evidence of the officers concerned, the form in which Gattellari's statements were taken, as well as their content, tended completely against the conclusion that the applicant's evidence was used to obtain them.
The Crown further submitted that the evidence did not support a conclusion that the search warrants executed at the applicant's home and business premises were connected to anything said by him to the Commission. It was submitted that the search warrants sought the seizure of a broad range of material and that it was entirely unsurprising, in all of the circumstances, that such material included financial documentation. The Crown submitted, in particular, that there was no reason to reject the evidence of Det. Howe in these respects.
It was further submitted by the Crown that no DPP lawyer involved in the applicant's prosecution had read a transcript of the applicant's evidence, and that no difficulty arose from the fact that Ms O'Rourke and others involved in the applicant's prosecution had read all or part of Gattellari's evidence. In this latter respect, it was pointed out that the applicant himself had relied upon what Gattellari had said before the Commission to extensively cross-examine him at the committal hearing.
The Crown further submitted that to the extent that the applicant maintained, despite what was said to be evidence to the contrary, that aspects of Gattellari's evidence derived from the disclosure to him of aspects of what the applicant had said, it would be open to the applicant to argue, in due course, for the exclusion of such evidence pursuant to ss. 90, 137 and 138 of the Evidence Act 1995. That such a course was available was, the Crown submitted, contrary to the proposition that a permanent stay was warranted. Finally, the Crown submitted that in light of the defence case statement and the statement made by the applicant at the conclusion of his committal hearing, there was no indication that the applicant was in any way prejudiced, as a result of his appearance before the Commission, in being able to determine what course he might adopt at any trial.
In R v Seller; R v McCarthy [2013] NSWCCA 42; (2013) 273 FLR 155 Bathurst CJ, having referred to McClellan CJ's judgment in CB, said (at [110]:
"I would merely add what was said by Mason CJ in Jago v District Court (NSW) (1989) 168 23 at 30, where the Chief Justice indicated his agreement with Richardson J in Moevao v Department of Labour (1980) 1 NZLR 464 at 482 that the justification for a stay is to prevent the court process from being employed in a manner inconsistent with the recognised purpose of the administration of criminal justice and so constituting an abuse of process. Further, a stay will only be granted in an extreme case and the fundamental defect which warrants a stay must be such that there is nothing that a trial judge can do to relieve against its unfair consequences: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605".
In my view, the statement in Edwards (at [23]; 720) represents the test which is to be applied. In order to satisfy that test, the applicant must point to a fundamental defect of such a nature such that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences: Barton v R [1980] HCA 48; (1980) 147 CLR 75 at 111 per Wilson J; R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605-6 per Mason CJ and Toohey J; Dupas v R [2010] HCA 20; (2010) 241 CLR 237 at [18].
With these principles in mind I turn to consider the applicant's primary submission.
In Lee the appellants had been found guilty of offences of drug supply. Both had given evidence in examinations before the Commission which canvassed the subject matter of the charges which were then pending against them (which were not the charges upon which they ultimately went to trial). The evidence established that those conducting the subsequent trial, including the Crown Prosecutor, had access to the transcripts of those examinations. In this regard, the High Court noted (at [15]):
"At the hearing of the appeals the Crown Prosecutor who had had the conduct of the trial was cross-examined, to a limited extent. As one might expect, he agreed that it was 'interesting' and 'informative' to know what the defence might say. He said that the transcripts of the evidence given before the Commission gave the prosecution some knowledge of what might be a defence in relation to the cash, and that other material from the Commission suggested that what might be relied on by the first appellant as an explanation might not be truthful. Answers given by the second appellant before the Commission must also have been of assistance to the prosecution in its preparation of its case. It is neither necessary nor appropriate to detail those answers".
The Court then said (at [32], footnotes omitted):
"Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that 'no attempt to whittle it down can be entertained' albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice".
In further reference to the decision in X7 the Court said (at [45]-[46]):
"It must be acknowledged that the matters in question occurred, and the decision of the court of Criminal Appeal was given, before judgment in X7 was handed down. Attention was therefore not directed to the principle of the common law respecting proof by the prosecution, unaided by the accused, which was in that case confirmed as fundamental to our system of criminal justice.
In X7, it was held that the compulsory examination of a person with respect to an offence with which the person stands charged would be a departure, in a fundamental respect, from that principle. X7 was ultimately concerned with questions of statutory construction. Nevertheless, the point it makes about what may about to a fundamental departure from a criminal trial as it is comprehended by our system of criminal justice is relevant to this case. It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which s. 13(9) of the NSWCC Act sought to protect. Rather, their trial was one where the balance of power shifted to the prosecution".
In R v X [2014] NSWCCA 168 the respondent had been charged with offences of drug manufacture. After being charged, he was issued with a summons pursuant the ACC Act and subsequently took part in an examination in which he was questioned about the subject matter of those charges. The primary judge ordered a permanent stay of the respondent's trial. The Court of Criminal Appeal set aside that order.
Hidden J (with whom Simpson and Hamill JJ agreed) considered the decisions in X7, Lee v NSWCC and Lee. Having done so, and bearing in mind that the issue before the primary judge was whether a permanent stay of the trial should be ordered, his Honour said (at [53]):
"In X7 and Lee v NSWCC the differences of opinion between the members of the High Court are clear enough. Nevertheless, X7 constitutes binding authority for the proposition that the examination under the ACC Act of a person who has been charged with an offence about the subject matter of the charge is not authorised by the Act, and is, accordingly, unlawful. It is the consequences for the pursuit of the prosecution of a person who has been subjected to such an unlawful examination which is the crucial question in the present case" (my emphasis)".
His Honour expressly acknowledged (at [56]) the importance of the principles governing the trial process as expressed by the majority in X7. However, he accepted the submission advanced by the Crown that in determining whether a permanent stay of proceedings is warranted, it is necessary to determine whether prejudice has been occasioned and, if so, whether it can be remedied in such a way as to ensure a fair trial. In doing so, his Honour referred to the observations of Hayne J in Lee v NSWCC (at [79]-[81]):
"The asking of questions and the compelling of answers about the pending charge inevitably interfere with the conduct of an accusatorial trial and embarrass the defence of the accused. The answers the accused has been compelled to give to the questions asked deprive the accused of forensic choices that otherwise would be legitimately open at trial to test the case which the prosecution advances. That is, the asking of questions about the pending charge and the compelling of answers to those questions work a fundamental alteration to the accusatorial process of criminal justice.
It is theoretically possible that, at the end of a trial, it may be said that the deprivation of those choices was anodyne in its practical effect. But that is not to the point. The issue is presented when it is sought to conduct the examination. The examination occurs before the trial has begun.
No doubt, it is important to notice that an examination order under s 31D(1) was to be conducted before the Supreme Court or an officer of the Court prescribed by the rules of court. It is to be assumed that the Court or its officer would act to prevent oppression of the person being examined and would act to prevent misuse or abuse of the process of examination, whether by limiting or precluding publication of what transpires at the examination or otherwise. But, if the trial of the person being examined is pending, the Court (or the officer of the Court) cannot know, or cannot predict, what might harm the defence of that person at trial. Those matters are unknown to, and unknowable by, the Court (or its officer) for the simple reason that the Court (or its officer) does not know, and cannot be told, what are or will be the accused's instructions to his or her lawyers at trial".
In respect of these passages, Hidden J observed (at [57]):
"What his Honour said at [80] recognises that, where such an examination has occurred, its effect on that person's trial will depend upon the circumstances of the case at hand" (emphasis added).
As with the present case (but unlike the situations in each of X7, Lee v NSWCC and Lee) the issue in X was whether a permanent stay of proceedings should be granted following the respondent's examination. In these circumstances, I accept the Crown's submission that the observations of Hidden J serve to confirm that the focus in a case such as the present case concerns the consequences, upon any proposed trial, of the examination. The fact of the examination itself, even if unlawful, does not inevitably justify an order for the permanent stay of the trial.
In the present case, there is obviously no doubt that Dets. Fitzhenry and Blanch were present when the applicant gave evidence. Neither took notes. Det. Fitzhenry's focus was not entirely directed to the applicant's evidence. There were some aspects of the applicant's questioning which he did not fully understand although, as I have pointed out, the subject matter of the questioning was not restricted to complex financial dealings. Clearly, there were matters about which the applicant was questioned which Det. Fitzhenry understood.
It is equally clear that Det. Fitzhenry (and, I infer, Det. Blanch) both remained at the Commission for the duration of the applicant's evidence. Further, and although the evidence is not precise, I am satisfied that the applicant's evidence was the subject of some discussion following his examination. At the very least, it was discussed at the debrief on 1 September.
Further, the matters about which the applicant was questioned by Mr O'Connor were obviously relevant to the investigation of the deceased's murder. The applicant was a suspect in that investigation.
In all of these circumstances, the presence of Dets. Fitzhenry and Blanch at the applicant's examination provided each of them with the opportunity to hear what the applicant said, and to use that information to advance the investigation against him if they wished to do so.
However, I am satisfied that neither Det. Fitzhenry nor Det. Blanch availed themselves of that opportunity. The evidence of both officers, which I accept, establishes that apart from the creation of the two specific tasks by Det. Fitzhenry, nothing that they heard in the course of the applicant's evidence was used for any investigative purpose by either of them. In these circumstances, and where the evidence does not establish that any other officer used anything said by the applicant for such a purpose, it cannot, in my view, be said that the Crown has been aided by the applicant's evidence.
Det. Fitzhenry did review the transcript of the applicant's evidence before creating each task. The first task was not pursued at all. The second was created, not as a consequence of the applicant's examination but as a consequence of the receipt of the Defence case statement. Importantly, Det. Fitzhenry did not use the applicant's evidence when undertaking the task and obtaining products in relation to it.
Det. Fitzhenry also uploaded the transcript of the applicant's evidence onto E@glei, and added aspects of it to the timeline. As a consequence, it was open to any officer who may have had access to that system to access the transcript and/or the timeline and make use of either. However the fact that this was possible is not evidence of the fact that it occurred. There is no evidence any officer accessed this material and then used it for some investigative purpose. For the reasons I have already stated, the evidence tends wholly in support of the conclusion that no investigative use was made of the applicant's evidence at all.
The presence of the police at the applicant's examination, and the associated opportunity to use the applicant's evidence in the investigation, has the capability to create unacceptable injustice or unfairness. However, what the applicant must establish in order for a permanent stay to be granted is that the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly prejudicial as to constitute an abuse of process. The mere presence of the police at the applicant's examination, without more, does not meet that test, particularly in circumstances where the applicant's examination was not regarded by those conducting the investigation as being particularly significant.
In advancing his primary submission, senior counsel for the applicant referred me to the recent decision of Logan J in QAAB v Australian Crime Commission [2014] FCA 747. The applicant in that case had been present at premises when a large drum of chemical was found in the course of the execution of a search warrant. He was charged with some relatively minor offences in respect of drug paraphernalia but was not charged in relation to the drum of chemical. He was then issued with a summons pursuant to s. 28 of the ACC Act requiring his attendance for a compulsory examination. One of the circumstances surrounding that examination concerned the presence, at the examination, of the person in charge of the investigation.
His Honour ultimately dismissed the application. However in doing so he said, in a passage relied upon by the applicant (at [39]):
"In Lee v R, at [29], the High Court contemplated that a power akin to s 25A(5) of the ACC Act might in a particular case be exercised so as to exclude from being present during an examination "persons associated with the possible prosecution of the person giving evidence". In my view, the class of persons thus described is not limited to persons in the office of a Director of Public Prosecutions but extends to police officers and others investigating the possible commission of offences. Even though a non-publication order of the kind foreshadowed by the examiner may be made, it is by no means impossible to see how a police or other investigating officer who is present might be inspired to pursue other lines of inquiry directed to the gathering of evidence for the prosecution of an examinee just by hearing that person's evidence under examination. The pursuit of such lines of inquiry might not necessarily violate a non-publication order but might well nonetheless prejudice the examinee's fair trial were he to be charged."
It was submitted on behalf of the applicant that the prejudice to which his Honour referred reflected precisely what had occurred in the present case. Leaving aside the fact that his Honour was not dealing with an application for a permanent stay, I am unable to accept that submission.
His Honour concluded that the pursuit of lines of enquiry following the attendance of an investigator at an examination might prejudice a fair trial. To begin with, pursuing a line of enquiry arising from an examination is a step beyond mere attendance at such examination. Moreover, as I have already noted, the evidence of Det. Fitzhenry and Det. Blanch was that nothing said by the applicant was used by either of them to pursue any line of enquiry. There is no evidence of any other officer having used anything the applicant may have said.
Further, even if were established that a line of enquiry arising from the applicant's evidence was pursued, it would remain necessary for the applicant to establish that as a consequence of that having occurred, the continuation of the proceedings would result in unacceptable injustice or unfairness. All of these considerations simply highlight the fact that, as Hidden J observed in X, it is the effect of an examination upon a person's trial which the important consideration. Such effect will depend upon the circumstances of the case at hand.
I am also unable to accept the submission that the presence of the police at the applicant's examination had the effect of upsetting the balance between the applicant and the prosecution in the manner referred to by the High Court in Lee. In Lee the Court was not called upon to consider whether the trial should be permanently stayed. Moreover, the factual circumstances in that case were markedly different. Part of what upset the balance in that case was the fact that the Crown Prosecutor had had access to, and had used in preparing the trial, the transcripts of the evidence given by the appellants before the Commission. The evidence in the present case establishes that the lawyers involved in the prosecution of the applicant have not even accessed the transcript of his evidence before the Commission, much less used it for any purpose.
For all of these reasons, I do not accept the applicant's primary submission that the presence of the police at the applicant's examination warrants an order for a permanent stay of the trial. I now turn to consider the remaining matters relied upon.
The second instance is the passage at [85] above. Gattellari was asked about the existence of security over the line of credit. The terms of the question put by Mr O'Connor included a reference to the applicant having "indicated" the existence of such security. That was obviously a reference to the applicant's earlier evidence before the Commission. In his response, Gattellari explained that "with the charges … we can't dispose of anything without his permission".
As the Crown pointed out, immediately before this the following questions and answers were recorded:
"Q The loan arrangements with Mr Medich's company, is there a loan agreement in place in relation to money that's been advanced?
A There is.
Q Who holds that agreement?
A I think Mr Medich is - one of Mr Medich's companies holds the charges and fixed and floating charges and mortgages over the companies".
These questions made no reference to the applicant's evidence at all. Significantly, in response to the second, Gattellari volunteered the existence of the security. It was immediately following that answer that Mr O'Connor asked the question in [85] above. In these circumstances, any disclosure of the applicant's evidence (such as it was) did not result in Gattellari's disclosure of the existence of the security. Its existence had already been volunteered.
Moreover, as the Crown also pointed out, it is not incumbent upon the presentation to establish these various financial dealings as a fact in its case. They are relied upon by way of background only.
The third instance is the passage at [86] above. In his question, Mr O'Connor made reference to the applicant having "indicated that the electrical companies are soaking up a substantial proportion of (the applicant's) wealth" to the point where he had indicated that there would not be any further credit extended. Gattellari did not expressly cavil with that proposition, but said that no further credit was being sought in any event.
Although the terms of Mr O'Connor's question might infer some reference to the applicant's evidence, such terms did not accurately reflect what the applicant had in fact said in response to being asked about his relationship with Gattellari (see [31] above).
The applicant in fact said nothing about the investments soaking up a substantial proportion of his wealth, nor did he assert that he was not prepared to make any further investment, or extend any credit.
The gravamen of the applicant's complaint in this respect is that important parts of his evidence were disclosed to Gattellari. I am not able to accept that such disclosure occurred in circumstances where the question that was asked did not, in fact, reflect the applicant's evidence. In any event, the fact that the applicant had invested heavily in businesses with Gattellari was known to the police well before he gave evidence. In March 2010, police intercepted a conversation between Gattellari and Kim Shipley in which the funding of the electrical companies, and the applicant's frustration at the lack of return as expressed to Shipley, were discussed (see statement of Gattellari at 93 above at [725]-[726]).
The fourth instance is the passage at [87] above. When the transcript of Gattellari's examination is read as a whole, it would appear that the monies advanced to Safetli, and the loan that Gattellari asserted he had made to Jim Emirian, were two separate amounts. Although Mr O'Connor's questions made reference to what the applicant had been "told by this Commission", that is of limited significance in circumstances where no reliance is placed by the Crown on loans made by Gattellari. In particular, the Crown does not rely upon any loan to Safetli as evidence of payment (or part payment) for the deceased's murder. Accordingly, even if there was some disclosure of what the applicant had said, the Crown does not rely upon it. Moreover, Gattellari's evidence that such loans were made without authorisation would appear to assist the applicant's case as it is outlined in the defence case statement.
The fifth instance is the evidence at [87]-[89] above. Gattellari was asked about the deterioration of the relationship between the applicant and the deceased. In the course of that questioning, Mr O'Connor made reference to the deceased's taping of private conversations between himself and the applicant (referred to in the Crown case statement at paras. 47 and 48) and the date on which the applicant became aware of that fact. Gattellari said he knew nothing about any tape.
There are a number of observations to be made concerning this aspect of Gattellari's examination. Firstly, as the Crown submitted, Mr O'Connor's questions to Gattellari on this subject made no reference to the applicant's evidence. In particular, they did not suggest that such evidence formed the basis of the questions which were asked. Secondly, Gattellari was asked an open-ended question (without reference to anything the applicant may have said) about the events which led to the deterioration of the relationship between the applicant and the deceased. He responded simply to the effect that "court cases" were an indication that the relationship had soured. Thirdly, and to the extent that Gattellari was asked about the date of 3 March 2009, Mr O'Connor had made it clear when questioning the applicant that the Commission's source of this information was "what came out of the ICAC enquiry" (at [28]) above. None of this involved the disclosure of what the applicant had told the Commission.
For all of these reasons, I am not satisfied that anything put to Gattellari in the course of his examination supports the making of an order sought.