R v Ronald Edward Medich

Judgment - ex tempore (revised)

1. At the conclusion of the evidence, and prior to the commencement of final addresses, I had discussions with the Crown and senior counsel for the accused as to the directions to be given to the jury in the course of my summing-up. Having heard submissions from both parties, there remained four issues, namely whether: 1. a direction should be given under s. 165(1) of the Evidence Act 1995 (NSW) ("the Act") in relation to the evidence of Glen McNamara; 2. a direction should be given under that same section in respect of the evidence of Joseph Prestia; and 3. a "Murray direction" should be given in relation to the witness Lucky Gattellari; and 4. a direction should be given in terms that it would be "dangerous to convict" the accused on the uncorroborated evidence of Gattellari.
2. I concluded that: 1. no direction under s. 165 should be given in relation to Mr McNamara or Mr Prestia; 2. a Murray direction was appropriate; and 3. the jury should not be directed in terms that it would be dangerous to convict the accused on the uncorroborated evidence of Gattellari.
3. Having expressed those conclusions I indicated that I would give reasons at a later date. Those reasons now follow.
4. I turn firstly to the issue concerning the witness, Glen McNamara. Mr McNamara, who was called in the defence case in relation to a discrete issue, namely whether Gattellari had admitted in McNamara's presence that he (Gattellari) had admitted to lying on oath when giving evidence at the accused's committal proceedings. This issue first arose in the course of the evidence given by the witness Shayne Hatfield. The evidence of Mr McNamara did not fit squarely within any of the categories in s. 165 of the Act. However, s. 165 is not a code. The circumstances in which evidence may be unreliable extend beyond the classes of evidence set out in s. 165(1)(a) to (g): R v Baartman [2000] NSWCCA 298 at [61] per Kirby J (Spigelman CJ and Smart AJ agreeing).
5. There are two reasons which rendered the giving of a warning under s. 165 of the Act inappropriate in respect of McNamara. Firstly, evidence given by any witness has the capability of being unreliable. That is so for the simple reason that such evidence may be dependent on fallible factors such as recollection. However, s. 165 is not directed to unreliability which arises because of those factors. Typically, the need for a warning under s. 165 arises because either the jury needs to be acquainted with the accumulated experience of the Court in dealing with certain types of evidence, or because there is a danger the probative value of the evidence may be overestimated. The operation of the section is therefore generally limited to those circumstances where the potential unreliability of the evidence is of a kind which would be more obvious to a trial judge than to a member of the jury: R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260 at [98] per Howie J.). As a consequence, s. 165 will rarely, if ever, apply to cases where nothing more than what might be described as general issues of credibility, such as vagueness, inconsistency, a motive to lie or demeanour, are in issue. Stojcevski v R [2012] NSWCCA 27 at [44] per Whealy JA; Baartman at [62] per Kirby J; GAR v R (No. 2) [2010] NSWCCA 164 at [97] per the Court (Tobias JA, Johnson and Rothman JJ).