The accused Ronald Edward Medich is presently standing trial for the murder of Michael McGurk, and for the intimidation of Mr McGurk's wife, Kimberley McGurk.
The Crown's principal witness is Fortunato Gattellari ("Gattellari") who is presently serving a term of imprisonment, having previously pleaded guilty to the murder of Mr McGurk. He has been giving evidence in the Crown case for a number of days.
In late 2016 Gattellari was charged by the police with further offences for which he is to stand trial in the District Court in October of this year. He is to be jointly indicted with his brother, Frank Gattellari, on two counts. The first alleges that between 1 January 2013 and 20 December 2013, they did conspire with each other and Robert Harley McCarthy, to defraud the accused. The second alleges that between 23 December 2013 and 31 July 2014 Gattellari, his brother, Shayne Desmond Hatfield and Linda Christina Monfrooy conspired with each other defraud the accused.
It is not necessary to detail, at any length, the allegations against Gattellari which will be the subject of that trial. It is sufficient for present purposes to note that the Crown case against him is that he allegedly entered into agreements with his co-conspirators to demand payment of a sum of money from the accused, in return for which he (Gattellari) would agree to give evidence in these current proceedings in a manner that would assist the accused to avoid conviction. I stress that those are, of course, allegations, which Gattellari has made clear will be defended.
Towards the end of Gattellari's evidence-in-chief, the Crown Prosecutor, having elicited from him that he had been charged with the offences to which I have just referred, asked him the following question (at T547.40):
Q. What was it that you were going to tell the accused you would do in exchange for money?
When that question was asked, and having previously been informed that Gattellari had attended to give evidence under subpoena, I intervened and asked the jury to retire. In the absence of the jury I explained the provisions of s 128 of the Evidence Act 1995 (NSW) ("the Act") to Gattellari. Having had those provisions explained to him, Gattellari elected (at T550.15) to answer that question (and any related question) willingly, on the understanding that a certificate under s 128(5) of the Act would be provided to him. When the jury returned, the Crown Prosecutor continued to put questions to Gattellari (commencing at T552) going to aspects of the allegations in respect of which he is to stand trial.
Gattellari has now been cross-examined for some days. Earlier today, that cross-examination reached the point where senior counsel for the accused indicated that he wished to ask Gattellari questions in relation to the charges pending against him. He initially asked Gattellari whether he had been charged. Gattellari initially refused to answer that question, however I directed him to do so in circumstances where, in my view, the question did not engage the provisions of s 128. Shortly afterwards however, Gattellari was asked the following question (at T929.40):
Q: Do you know a man by the name of Robert McCarthy?
As previously noted, Mr McCarthy is named as a co-conspirator in the first count in the indictment to be presented against Gattellari in the District Court. I have also been informed, and it is not in dispute, that Mr McCarthy has pleaded guilty to his role in that alleged conspiracy and will give evidence for the Crown against Gattellari and his brother at their trial.
Prior to that question being asked, and in the absence of the jury, I was informed by the Crown (at T920.20 - T920.32) that Gattellari had indicated that he was no longer willing to answer questions in relation to these matters, notwithstanding the position that he had adopted to questions asked in evidence in chief in respect of the same subject matter.
When Gattellari was asked the question (at T929.40) the jury were again asked to retire, following which I again explained the provisions of s 128 of the Act to Gattellari once again. Gattellari indicated on that occasion that he did not wish to answer the question asked, or any directly related question, willingly. At that point, the proceedings were adjourned in order that arrangements could be made for Gattellari's counsel to attend court and make submissions to me as to whether or not it was in the interests of justice that Gattellari be required to answer such questions.
The issue which has arisen is, in substance, the same issue as that which arose in the previous trial: R v Medich (No 12) [2017] NSWSC 60 ("Medich No. 12"). On that occasion I concluded that in all of the circumstances, it was in the interests of justice that Gattellari be required to answer questions of this nature. That, of course, does not necessarily dispose of the matter at this point. Further submissions, over and above those which were made to me on the last occasion, were made on Gattellari's behalf today.
Firstly, it was submitted that to require Gattellari to answer the question would alter the accusatorial process. In support of that position I was referred to the decision of the High Court in X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29.
Secondly, whilst acknowledging that Gattellari would, if ordered to answer the questions, be provided with a certificate under s 128, counsel submitted that any protection given by such a certificate was "imperfect". It was submitted that such imperfection manifested itself, at least in part, in the fact that a certificate would not prevent the prosecutor in Gattellari's trial being, as counsel put it, "forewarned and forearmed" regarding matters which might be relied upon by Gattellari in his defence. It was also submitted that such certificate was imperfect because it would not protect Gattellari in the event that any evidence that he gave was false.
Thirdly, it was submitted that the subject matter of the questions did not go to matters which were directly relevant to the charges against the accused, and that its only relevance was that it went to Gattellari's credit. It was submitted that such issue was necessarily isolated from the principal issues in the accused's trial.
Senior counsel for the accused submitted that it was in the interests of justice that Gattellari be required to answer the questions. He submitted, in particular, that appropriate protection was afforded by the issue of a certificate under s 128, and he stressed the right of the present accused to a fair trial. He also submitted that on any view, the credit of Gattellari was a principal issue in the trial.
The Crown Prosecutor emphasised that the position now taken by Gattellari represented a divergence from that which he had adopted in answer to questions on the same subject which were asked of him in chief. The Crown also submitted that the accused necessarily had a right to a fair trial and, as I understood it, submitted that a combination of those factors weighed in favour of a conclusion that it was in the interests of justice that Gattellari be required to answer the question.
In circumstances where this issue has been the subject of a previous judgment, it is appropriate that I note some of the observations that I made on the last occasion.
Firstly, I observed in my previous judgment (at [18]) that the term "interests of justice" is necessarily a wide one: Medich No. 12 at [18]. What may be in the interests of justice must be determined necessarily according to the circumstances of the particular case. I also observed on that occasion that in determining whether or not it was in the interests of justice that Gattellari give the evidence there were a number of matters which were relevant. Those matters were enumerated in Medich No. 12 at [19] to [21]. Without going through each and every one of them, they remain of the same force now as they did then.
I am unable to accept the submission that a certificate issued under s 128 of the Act is imperfect in any sense. In Medich No. 12 at [24] I noted that in R v Ronen & Ors [2004] NSWSC 1290, Whealy J had observed (at [70]), that the protection afforded by such a certificate is "wide" and "very real". I also noted that his Honour had noted in (at [72]) that s 128 does not automatically operate so as to relieve a witness of the obligation to answer questions simply because those questions relate to pending criminal proceedings.
In this regard I was referred by counsel for Gattellari to a decision of the Court of Appeal in Rich v Attorney General for New South Wales & Ors [2013] NSWCA 419, which was cited as authority for the proposition that certificates issued under s 128 are indeed imperfect. That decision revolved around the provisions of s 61 of the Coroners Act 2009 (NSW) which in some respects are not dissimilar to the provisions of s 128. I was referred, in particular, to the judgment of Leeming J in that case at [39]. Having read it, the paragraph does not appear to me to support the proposition that a certificate under s 128 carries with it the imperfections which were suggested.
I am also unable to accept the submission that the imperfection of a certificate sought under s 128 is demonstrated by the fact that if Gattellari gave evidence which was not truthful he would not be protected. That is the case with any certificate issued under s 128. In any event, the suggestion that Gattellari will commit perjury, such that any certificate issued to him would not protect him, is necessarily a purely speculative one.
I accept counsel's submission that the questions to be asked of Gattellari go to the issue of his credit. However, the importance of Gattellari's credit in this trial cannot be underestimated. He is the Crown's principal witness. He has pleaded guilty to his involvement in the murder of the deceased. He has been given a substantial discount, in accordance with the law, for the assistance he has given to the authorities. That assistance obviously includes giving evidence against the accused at his trial.
The importance of Gattellari's credit in the present trial takes on added significance when one considers the nature of the allegations for which he is to stand trial, which will be the subject of the questions put to him. As I observed in my previous judgment, even before being charged with the most recent offences Gattellari's credit was destined to be a principal issue in the trial: Medich No. 12 at [20]. The fact that he has been charged with these more recent offences renders this all the more so. This is because of the fact that the Crown case against Gattellari in respect of these most recent allegations is that he attempted to extort millions of dollars from the accused in return for "tailoring" his evidence in this very case in a way designed to assist the accused to avoid a conviction.
It follows that whilst I accept that the questions go to Gattellari's credit, it remains the case that there is a direct link between Gattellari's role as a witness in this trial, his credit, and the charges which have been brought against him. These circumstances support a conclusion that it is in the interests of justice that he be directed to answer the questions. The evidence has a capacity to impact upon the jury's assessment of Gattellari's credit in a substantial way: Medich No. 12 at [21].
The proposition that, in the event that Gattellari is required to answer the question, the prosecutor in Gattellari's trial will be "forewarned and forearmed" in the preparation of the case against him overlooks a number of important factors. Principally, it overlooks the fact that any evidence given by Gattellari in these proceedings cannot be used against him. If it were the case that there were any attempted derivative use of any such material by the prosecution, then Gattellari would obviously have a remedy available to him. I would expect, in the circumstances, that the Director of Public Prosecutions will take all necessary steps so as to ensure that those prosecuting Gattellari at his trial are appropriately "quarantined", as it were, from any evidence that he may give in relation to these matters in the current proceedings.
I have already observed that the accused in this case has a fundamental right to a fair trial. That, of course, equally applies to Gattellari in his trial. Any consideration of the interests of justice mandates that I take into account Gattellari's position. However, I am not satisfied that if he is required to answer the question in this trial, his own right to a fair trial will be prejudiced. As I have said on a number of occasions, he will have the protection of a certificate under s 128.
For all of those reasons, I am satisfied that it is in the interests of justice that Gattellari be required to answer this question and any related question.
[2]
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Decision last updated: 29 April 2020