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.
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.
Having expressed those conclusions I indicated that I would give reasons at a later date. Those reasons now follow.
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).
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).
R v Ronald Edward Medich [2017] NSWSC 356 | Case summary | Zoe
It follows that if there is no aspect of the evidence about which the Court has particular knowledge, and where the nature of the evidence is such that it is well within the province of the jury to assess, it is not likely to attract a warning under the section: Baartman at [61]-[65]. All of those circumstances weighed against giving a warning under s. 165 in relation to Mr McNamara's evidence.
There was, however, an additional factor which also weighed against such a warning being given. Although s. 165 may apply equally to evidence adduced by the prosecution and the defence, there have been statements to the effect that it will rarely be appropriate for a warning under that section to be given in respect of the evidence of a defence witness, regardless of how unreliable that evidence might be. The rationale of that approach lies in the fact that the necessity for warnings and cautions regarding the unreliability of evidence usually arises because the Court has some knowledge of particular aspects of the evidence which might undermine its reliability, and which might not be apparent to a member of the jury. The matters which call for a warning under s. 165 will rarely be applicable to a witness who is not giving evidence implicating an accused person in the commission of the offence for which he or she is standing trial: R v Ayoub [2004] NSWCCA 209 at [14] per Howie J.
It was for those reasons I came to the conclusion that a warning under s. 165 in respect of Mr McNamara's evidence was not appropriate.
To some extent, similar observations can be made in relation to the evidence of Mr Prestia. Although Mr Prestia was called in the Crown case, his evidence centred upon a similarly discrete issue. There was no particular aspect of his evidence about which the Court had any particular knowledge. The cross-examination of Mr Prestia certainly raised issues of credit but those issues, and the acceptance or rejection of his evidence, is a matter which is well within the province and capability of the jury to assess. It was for those reasons I came to the conclusion that no direction under s. 165 was warranted in his case.
I turn to the request by senior counsel for the accused for a direction in accordance with the decision in R v Murray (1987) 11 NSWLR 12. In that case Lee J observed (at 19) that in all cases of serious crime, it is customary for judges to stress that where there is only one witness asserting the commission of such crime, the evidence of that witness must be scrutinised with great care before a conclusion is reached that a verdict of guilty should be returned.
The Crown objected to a direction being given in those terms, principally on the basis that the essence of such a direction would be covered in the direction given in respect of Gattellari under s. 165(1)(d) (the necessity for which was not disputed by the Crown). True it is that a warning under s. 165(1)(d) centres upon the necessity for the jury to carefully scrutinise Gattellari's evidence because it may be unreliable. However that of itself is not, in the circumstances of this case, a reason not to give a Murray direction. The respective directions centre upon differing factual circumstances. The fact remains that in this case the Crown relies principally (although perhaps not solely) on the evidence of Gattellari. The Crown's reliance on Gattellari is perhaps more significant in terms of the murder count, than it is in respect of the second count in the indictment alleging the intimidation of Mrs McGurk. But it remains the case that the Crown case is clearly dependent upon his evidence in all of the circumstances, and for those reasons, I came to the conclusion that a Murray direction was warranted.
That leaves the final issue as to whether or not the jury should be directed that it would be dangerous to convict the accused on the uncorroborated evidence of Gattellari. Mr Terracini SC articulated a number of reasons in support of the giving of such a direction, although all of those reasons essentially stemmed from the fact that the Crown relies substantially on Gattellari's evidence, and that he is, on any view, a person who was criminally concerned in the relevant events.
At common law it was customary to direct a jury (irrespective of whether such a direction was expressly sought) that it was dangerous to convict on the uncorroborated evidence of an accomplice. Section 165(1)(d) of the Act essentially replaces that common law position. Although the word "accomplice" is not specifically used in the section, the section creates a category of evidence which may be unreliable, and which includes what was regarded at common law as the evidence of an accomplice.
The terms of the common law direction (which is essentially what senior counsel for the accused sought) were predicated on the assumption that the evidence was uncorroborated. Matters to which reference was generally made when giving the direction at common law might also, where appropriate, be used when informing the jury of matters which might cause the evidence of a witness to be unreliable under s. 165(1)(d). However it is important to emphasise that the presence or otherwise of corroboration plays no part whatsoever in any warning given under s. 165(1)(d). The position under the Act is that if evidence has been given by a person supposed to have been criminally concerned in the relevant events, such evidence, by its very nature, may be unreliable. It is in those circumstances that a trial judge, if requested to do so (and unless of the opinion that there are good reasons not to do so) is to give a warning that such evidence may be unreliable. On any view of this case, that direction is appropriate.
A trial judge may, if satisfied that it is necessary in the interests of justice to do so in a particular case, warn the jury in terms of the common law position. However, two matters must be stressed. Firstly, a trial judge is never under a duty to give a warning in those terms: Kanaan & Ors v R [2006] NSWCCA 109, at [217] per the Court (Hunt AJA, Buddin J, Hoeben J (as his Honour then was)). Secondly, since the enactment of s. 165, any formulation of the warning which directs the jury that it is "dangerous to convict" is one that should be avoided unless the circumstances are truly exceptional: Robinson v R [2006] NSWCCA 192 at [19] per Spigelman CJ (Simpson J (as his Honour then was) agreeing; per Johnson J at[165]); GAR v R (No. 2) [2010] NSWCCA 164 at [103] per the Court (Tobias JA, Johnson and Rothman JJ.)
As I have noted, the basis on which Mr Terracini sought this particular direction essentially stemmed entirely from the fact that Gattellari was criminally connected in the relevant events and was the principal witness for the Crown. Those circumstances, in my view, are not such as to be regarded as truly exceptional. This is particularly so in circumstances where, at least in respect of the second count in the indictment, there is a degree of independent corroboration, in a general sense, of Gattellari's evidence. It was for those reasons that I declined to give the direction sought.
[2]
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Decision last updated: 24 April 2018