The accused is presently on trial for the offence of murder in circumstances which are more fully detailed in previous judgments delivered during the course of the trial. A principal witness called by the Crown is Fortunato Gattellari ("Gattellari"), who has pleaded guilty to his involvement in the deceased's murder and who is currently serving a sentence of imprisonment.
At the end of 2016 Gattellari, his brother Frank, Linda Monfrooy ("Monfrooy"), Shayne Hatfield ("Hatfield") and Robert McCarthy were charged with conspiring to defraud the accused. The allegation against them is that they agreed to (and did) attempt to extort a large sum of money from the accused, in return for Gattellari not giving evidence against the accused at his trial. Pursuant to its obligation to conduct the trial against the accused fairly, the Crown has made all of Gattellari's alleged co-offenders available for cross-examination.
Hatfield has been cross-examined by counsel for the accused. He gave evidence of a meeting which is said to have occurred at a Correctional Centre at which he and Gattellari were housed, at which all of Gattellari's alleged co-offenders were present. Also present were Roger Caleb Rogerson and Glen Patrick McNamara. Neither of those persons have been charged, although there have been numerous references in the evidence thus far to their role in the alleged conspiracy.
Hatfield made a statement to the police on 24 July 2014. Paragraph 14 of that statement makes reference to the meeting and is in the following terms:
"Rogerson, McNamara and Linda then came into the gaol to visit me whilst Frank Gattellari came into the gaol to visit Lucky. When they came, we all sat together in the first section of the visiting area. I introduced everyone and then we all had a bit of small talk about boxing and I think Roger said that he had arrested Rocky a long time ago over a traffic matter. We were then approached by a Corrective Services officer, Mr Marsh. Lucky and Frank were told to move away. As Lucky was moving away, Rogerson said, 'I'll discuss everything with Shayne'. Lucky said, 'I'm happy with that' and 'just go ahead with Shayne'."
R v Ronald Edward Medich [2017] NSWSC 169 | Case summary | Zoe
I interpolate that the reference to "Rocky" in that paragraph is a reference to Gattellari's other brother. He has not been charged with the alleged conspiracy.
In the course of cross-examination (commencing at T1535 L22) Hatfield was asked a number of questions about that meeting. Having agreed that a visit took place when Rogerson came to see Gattellari at the Cooma gaol, he initially agreed with the proposition that Gattellari had admitted to those present that he had lied about the accused when giving evidence in the accused's committal proceedings (commencing at T1535 L22):
Q. And were you present?
A. I was out in the visits - in the visits area and Roger and Glen McNamara and Linda visited me while Frank Gattellari visited Lucky, but when we first went into the visits area we all were sitting together, so it was like the one visit.
Q. Sure, and what was discussed?
A. All of this.
Q. And did you hear anything that Gattellari said to McNamara on that visit?
A. Yes.
Q. And did you hear Gattellari say that he had lied in his evidence at the committal about Ron Medich?
A. Yeah, I did. He told me that previously.
Q. Yes?
A. Yes.
Q. And did he say that he lied to the Court when he said that Ron Medich was involved?
A. Ah, I don't know if I heard that (emphasis added).
The questioning then continued at T1536 L8:
Q. And how far away from you do you think Gattellari was when you heard him say that to McNamara?
A. I think he was right next to me, from memory.
Q. All right. This is not meant to be flippant, but you don't have any problem, obviously, with your hearing?
A. No.
Q. And were they talking in a normal tone, were they whispering, how would you describe it?
A. Ah, it was quite - it was kind of whispering, yeah.
Q. And did you also hear Gattellari say to McNamara that he lied at the Crime Commission?
A. Oh, no, I didn't hear that. It would be in here if I heard that.
Q. I beg your pardon?
A. It would be in here, if I heard that.
In the course of that cross-examination Hatfield was not taken to paragraph (14) of the statement that he made to the police (set out at [5] above).
Paragraph (14) of Hatfield's statement makes reference to nothing having been said other than a "bit of small talk about boxing" before those present were separated. That is somewhat at odds with what Hatfield in the bolded portion of the extract of the transcript set out in [6] above, in which he asserted that Gattellari had made an admission to lying on oath about the accused when giving evidence at the committal.
The cross-examination of Hatfield has, in some respects, essentially amounted to a collateral attack on the credibility of Gattellari. It is in those circumstances that the Crown has made application for leave, pursuant to s. 38 of the Evidence Act 1995 (NSW) ("the Act") to cross-examine Hatfield on the inconsistency to which I have referred.
Senior counsel for the accused initially raised no substantive objection to that application. Having had an opportunity to reflect upon it, he opposed it. It should also be noted that other areas of proposed cross-examination of Hatfield pursuant to s. 38 have been identified by the Crown, to which no objection is taken by senior counsel for the accused.
The Crown submitted that the circumstances which had arisen fell squarely within the ambit of s. 38 of the Act. It was submitted that it was open to form the view that Hatfield was less than reliable. The Crown pointed out that in making Hatfield available for cross-examination, it had always been the Crown's position that he was unreliable. It was submitted that the application for leave to cross-examine him was consistent with that position.
In objecting to leave being granted senior counsel for the accused, on a number of occasions, described the circumstances which had arisen as "unique". Their unique nature was said to stem from the fact that the Crown had not asked an question of Hatfield in chief, and had simply called him and made him available for cross-examination. Senior counsel submitted that to now allow the Crown to cross-examine Hatfield would be unfairly prejudicial to the accused. That said, senior counsel appeared to accept that the danger of unfair prejudice could be appropriately addressed by providing him with an opportunity to further cross-examine Hatfield after the Crown's cross-examination had concluded.
Section 38 of the Act is in the following terms:
38 Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party, or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
(c) whether the witness has, at any time, made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.
Note : The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.
(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:
(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7) A party is subject to the same liability to be cross-examined under this section as any other witness if:
(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and
(b) the party is a witness in the proceeding.
Because the terms of s. 38 require the Crown to be granted leave to cross-examine Hatfield, s. 192 of the Act is also relevant. That section is in following terms:
192 Leave, permission or direction may be given on terms
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b) the extent to which to do so would be unfair to a party or to a witness, and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d) the nature of the proceeding, and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
Moreover, because of the fact that the evidence sought to be elicited in cross-examination by the Crown appears to go principally to the issue of Hatfield's credibility, s. 38(3) of the Act becomes of particular significance.
As I have indicated, senior counsel for the accused placed some emphasis upon the proposition that the circumstances which had arisen were properly described as "unique". I was not referred by either party to any authorities which might bear upon this issue, but my brief research in the time that I have had available tends to support a conclusion that the present situation is not really unique at all. There are a number of authorities which generally support the proposition that the Crown should be granted the leave which is sought.
In R v Parkes [2003] NSWCCA 12 Ipp J (commencing at [81]) made a number of observations about the operation of s. 38 of the Act. He observed (at [84]):
The decisions taken by the Crown were based on reasonable grounds; that is to say, the situation that the Crown faced in regard to Harris was such that it was reasonable, forensically, for it to wait and see whether Harris would give unfavourable evidence in cross-examination and then to apply under s. 38. The point being that it was completely uncertain, as far as the Crown was concerned, whether or not Harris would be asked about the three issues and what replies he would give (although the Crown knew that there was a potential for some or all of the replies to be unfavourable). I see nothing improper in the Crown adopting the procedure that it did. Accordingly, I have come to the conclusion that, although the deliberate decisions taken by the Crown have to be classified as falling into the basket of forensic tactics, they did not lead to the Crown's application under s. 38 being an abuse of the section.
In the same case, Hulme J observed (at [139]):
While section 38(4), in requiring cross-examination by the party calling a witness before opposing counsel cross-examine, "unless the Court otherwise directs", clearly places an onus on the party calling the witness to satisfy the Court that it should "otherwise direct" and the Court will no doubt be astute to see no unfairness is created if such cross-examination is delayed, it seems to me that the efficiency of the trial process and fairness all around will often make the onus one which is not difficult to discharge.
In Kanaan and ors. v R [2006] NSWCCA 109 the Court (Hunt AJA, Buddin J and Hoeben J (as his Honour then was)) made a number of further observations about the operation of s. 38 of the Act in circumstances such as the present. Emphasis was placed (at [80]) on the fact that the Crown does not warrant the truthfulness of its witnesses, and is not obliged to embrace and accept whatever those witnesses say. This because the Crown has the obligation to present its case conformably with the dictates of fairness to the accused. The Court observed that such obligation was imposed on a Crown Prosecutor as an incident of his or her position as a Minister of Justice. The Court also observed (again at [80]) that it was the usual practice in criminal trials for the Crown to accept an obligation to call all witnesses whose evidence was relevant to the Crown case, when requested by the accused to do so. Their Honours specifically pointed out that when doing so, the Crown Prosecutor is always entitled to say to the jury that the Crown has not put that particular witness forward as a witness of truth.
At [83] the Court observed that s. 38 of the Act abrogated the common law relating to hostile witnesses by enabling the party calling a witness to obtain leave to question that witness, as though cross-examining him or her, about evidence which was unfavourable to that party. Their Honours went on to observe (at [84]) that the greater availability of cross-examination of a Crown witness by the Prosecutor pursuant to s. 38 had placed more emphasis on the Crown's obligation to call witnesses whose main relevance was the availability of evidence which was unfavourable to the Crown case. In making that observation, their Honours cited the decision in Parkes, to which I referred a moment ago.
Having made those observations, the Court said (at [85]):
Where the Crown Prosecutor fulfils such an obligation, it would be unjust to the Crown (which prosecutes on behalf of the community) to refuse leave to cross-examine in relation to the unfavourable evidence given, subject of course to the usual discretions such as provided by s. 137 of the Evidence Act: Regina v Milat (BC9707720), Hunt CJ at CL, 23 April 1996 at 5-6 (see Evidence Act s. 192(2)). Leave must also be sought to cross-examine the witness about matters "relevant only" to the witness's credibility: s. 38(3); and it should be noted that the credibility of a witness includes the witness's ability to observe or remember facts about which the witness has given evidence, (that is, the reliability of his evidence): Evidence Act, s. 3.
Generally speaking, the authorities support a conclusion that leave should be granted to the Crown, subject to the considerations in s. 38 and s. 192. I turn to those considerations.
As I have observed, s. 38(3) provides that the party questioning the witness under the section may ask the witness about matters relevant only to the witness's credibility with the leave of the court. For reasons that I am about to articulate, I am of the view that such leave ought be granted.
Subsection (6) of s. 38 requires that I must take into account firstly whether the parties seeking leave gave notice at the earliest opportunity of the intention to seek leave, and secondly the matters on which, and the extent to which, the witness has been (or is likely to be) questioned by another party. I pause to observe that although those two conditions are mandatory, they are not exclusive.
As to the first, no issue has been raised about the time at which notice was given. As to the second, Hatfield has been cross-examined extensively in relation to this issue by Senior Counsel for the accused. It was in the course of that cross-examination that the issues in respect of which leave is sought to cross-examine arose. These matters support a grant of leave.
Before leaving s. 38, ss. (4) gives the Court power to direct the time at which the cross-examination may take place. Because Hatfield has already been cross-examined, the Crown bears the onus of establishing that I should "otherwise direct" in terms of the sub-section. For the reasons articulated by RA Hulme J in Parkes, that is not a difficult onus to discharge. I am satisfied that the Crown has done so in the present case.
I turn to s. 192(2) of the Act which sets out a series of factors to be taken into account. Again, those factors are mandatory but not exclusive. The proposed cross-examination is not likely to add unduly to the length of the trial. For reasons to which I will come, I am not satisfied that would be any danger of unfair prejudice to the accused if leave were granted. Indeed, in all of the circumstances in my view, it would be unfair to the Crown not to be permitted to pursue the issue with Hatfield. The evidence is clearly important for the reasons that I have already given. The nature of the proceeding is obviously serious. Both of those matters are factors which weigh in favour of the grant of leave. In all of the circumstances, the matter in s. 192(2)(e) would appear to have little or no application.
The decision in Kanaan supports a conclusion that in circumstances such as the present it would be unfair to the Crown not to grant leave. However, I must have regard to s. 137 of the Act which mandates the exclusion of evidence if its probative value is outweighed by the danger of unfair prejudice to the accused.
In my view, the probative value of the evidence is significant, particularly given the focus which has been placed on the evidence of Gattellari. It may well be, subject to what answers are given by Mr Hatfield in cross-examination, that the evidence turns out to be prejudicial to the accused's case. However, as I have observed a number of occasions in previous judgments delivered in this trial, such an observation can be made about almost all evidence which is adduced by the Crown. Section 137 is directed towards is the danger of unfair prejudice. Senior counsel for the accused ultimately accepted that if he were given a further chance to cross-examine Hatfield after the Crown's cross-examination is completed, there would be little or no danger of unfair prejudice. I am not satisfied that there would be a danger of any unfair prejudice to the accused if leave were granted.
Finally, reference was made in the course of argument to an assertion said to have been made by McNamara about what Gattellari may or may not have said at this meeting. At the present time, McNamara has not been called to give evidence and he has not been charged. The Crown Prosecutor has indicated that she does not propose to call him, and does not propose to make him available for cross-examination. Senior counsel for the accused has foreshadowed an application for an order that the Crown call McNamara in its case. It is not necessary to determine that application now, although I should say that on my understanding of the authorities, there is considerable doubt about whether I have the power to make such an order. In any event, issues surrounding the possibility of Mr McNamara giving evidence have little or no bearing on the present application. For the reasons that I have outlined, the mandatory factors weigh heavily in favour of a grant of leave, and the authorities make it clear that there would be an element of unfairness to the Crown if leave were not granted.
Accordingly, I propose to grant leave to the Crown under s. 38.
[2]
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Decision last updated: 24 April 2018