CRIMINAL LAW - Evidence - Subpoena - Whether legitimate forensic purpose established
Cases Cited: Alister v R (1984) 154 CLR 404
[1984] HCA 85
Attorney-General (NSW) v Chidgey [2008] NSWCCA 65
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - Evidence - Subpoena - Whether legitimate forensic purpose established
Cases Cited: Alister v R (1984) 154 CLR 404[1984] HCA 85
Attorney-General (NSW) v Chidgey [2008] NSWCCA 65
Judgment (2 paragraphs)
[1]
Judgment - ex tempore (revised)
On 8 March 2018 the solicitors for the accused issued a subpoena to Mr Sundip Ghedia, solicitor, seeking production of the following:
"Your full file, including, but not limited to, any file notes, correspondence and documents, relating to your legal representation of Fortunato "Lucky" Gattellari between 13 October 2010 and 31 October 2010."
As the terms of that subpoena indicate, Mr Ghedia is the former solicitor for the Crown's principal witness, Fortunato Gattellari.
On 9 March 2018 the Crown filed a notice of motion, supported by an affidavit of Georgia Rowe, solicitor, of the same date, seeking (inter alia) the following orders:
"1. The Crown have leave to file in Court this Notice of Motion and supporting affidavit of Georgia Campbell Rowe, solicitor;
2. The Subpoena for Production issued to Mr Sundip Ghedia on 8 March 2018 be set aside; or in the alternative
3. The accused be permitted to limit the scope of the subpoena to "file notes of claims by Fortunato 'Lucky' Gattellari between 14 and 18 October 2010 that he was innocent of the murder of the deceased Michael McGurk";
4. Such further or other order as this Honourable Court thinks fit."
The orders sought in the motion are opposed by senior counsel for the accused.
The background to the issue of the subpoena can be shortly stated. Mr Ghedia acted for Gattellari from the time of his arrest by the police. I have been informed from the Bar table, and have proceeded on the assumption, that Mr Ghedia continued to act for Gattellari up until the time that he was sentenced in this Court for his part in the deceased's murder.
Mr Ghedia was called by the Crown to give evidence on 7 March 2018. In the course of cross-examination, senior counsel for the accused questioned Mr Ghedia about the fact that Gattellari had, for some period following his arrest, "protested his innocence" in respect of any involvement in the deceased's murder. Commencing at T1973.3 the following evidence was given:
"Q. At that stage, by 18 October 2010, he's still protesting his innocence to you?
A. I can't remember.
Q. I suggest to you if he changed his approach and said he was guilty, you would remember it, wouldn't you?
A. No.
Q. No?
A. I would rather refer to my file notes."
In the exchange which followed, reference was made to a subpoena which was previously issued by the Crown to Mr Ghedia seeking the production of various documents. Mr Ghedia sought access to the file notes produced on that occasion to assist him in answering the questions put to him. When the documents were then produced, he indicated that they did not assist him. The present subpoena was issued.
Gattellari's suggested assertion of "innocence" (if made) would obviously be inconsistent with the assistance he gave to the police (with his later plea of guilty in the course of which he admitted his guilt), and it is for that reason that senior counsel for the accused wishes to pursue this line of cross-examination and elicit from Mr Ghedia the fact that, at least at one point following his arrest, Gattellari maintained that he was innocent of any wrongdoing. That, in my view, is (prima facie) a legitimate and relevant line of questioning, and the Crown has not suggested otherwise The issue between the parties on the subpoena is a narrow one and is centred upon the extent to which documents going to that question should be produced.
The Crown's position is that any relevant file notes or similar material to be produced by Mr Ghedia in respect of this issue should be limited to the period between the dates of Gattellari's arrest on 13 October 2010 and 19 October 2010. The basis of the Crown's position stems from the fact that it was on 19 October 2010 that Gattellari signed the first of his statements to the police in which he made admissions as to his involvement in the deceased's murder. That statement has been tendered by the Crown as evidence on the present motion.
Senior counsel for the accused seeks to extend the period to 31 October 2010. This is said to be for the purpose of determining whether, whilst he was assisting the police (and thus admitting his guilt), Gattellari continued to maintain his innocence (and thus, adopt a contrary position) to his solicitor. The legitimate forensic purpose said to underlie the subpoena was articulated by senior counsel by submitting it would be "highly relevant" if there were any variance between the position taken by Gattellari in his dealings with police, and that which he was taking simultaneously in his dealings with his solicitor.
It is beyond doubt that on 19 October 2010 Gattellari made the first of a number of statements to the police, in the course of which he made admissions. For the purposes of the present issue, two paragraphs of that statement are particularly relevant. Firstly, in [5] Gattellari said:
"I am making this statement of my own free will and I have sought legal advice from my Solicitor, Sundip Ghedia, and Barrister Anthony Bellanto QC. My Solicitor Sundip Ghedia is present with me in the making of this statement."
Secondly, in [9] he said:
"Ron Medich asked me to have Michael McGurk murdered. I asked Senad Kaminic to ask two brothers known to Senad and I [sic] named Hiese and Bass (who I now know their last names to be Safetli). Hiese and Bass were asked to murder Michael McGurk which they agreed to do. I believe Hiese murdered Michael McGurk. I conveyed money from Ron Medich to pay for McGurk's murder. I gave this money to Senad to pay Hiese and Bass for surveillance and murdering McGurk. The negotiated price was in two sections, the first being the murder and the second being the threat to Michael McGurk's wife. The fee for the murder to Hiese and Bass was $300,000. Medich wanted McGurk dead because he believed that once Michael McGurk was out of way, retrieving money owed by Michael McGurk to Ron Medich would be easier from Michael McGurk's wife once Michael McGurk was dead. The figure in dispute between Ron Medich and Michael McGurk was many millions of dollars. The dispute and reason Ron Medich wanted Michael McGurk dead was because Ron Medich loaned Michael McGurk large sums of money for Michael McGurk's business that Michael McGurk never paid back and was involved in legal disputes through the courts and was costing Ron Medich lots of money, embarrassment and his relationship with Ron Medich's wife Odetta deteriorated as a result of this."
It will be apparent from [9] that the admissions made by Gattellari on 19 October 2010 as to his involvement in the deceased's murder were extensive. They are fundamentally at odds with the proposition that he was innocent of any wrongdoing. What is also significant (as is evident from [5]) is that those admissions were made with the full knowledge of Mr Ghedia, who was present when the statement was made.
I was referred by the Crown in the course of argument to a decision of Whealy J in R v Baladjam & Ors (No 29) [2008] NSWSC 1452 in which his Honour reviewed (commencing at [16]), a number of authorities in relation to subpoenas, and in particular, the need for a legitimate forensic purpose to be established. I have outlined the terms in which the legitimate forensic purpose was articulated by senior counsel for the accused in this case.
The term "legitimate forensic purpose" has two aspects. Firstly, before access is granted to material the production of which is sought, the applicant (or in this case the accused) must firstly identify the legitimate forensic purpose for which access is sought. Secondly, he must establish that it is "on the cards" that the documents sought or material will assist his case: R v Saleam (No 2) [1999] NSWCCA 86 at [11] per Simpson J (as her Honour then was). The effect of the Crown's submissions in the present case is that the attempt to extend the relevant period beyond 19 October 2010 to 31 October 2010 amounts to the accused engaging in an impermissible fishing expedition.
Fishing expeditions can never be allowed: Alister v R (1984) 154 CLR 404; [1984] HCA 85. It is not legitimate to subpoena documents if the party issuing the subpoena is trying to obtain documents in order to determine whether or not they may assist that party's case: Baladjam at [18] citing Attorney-General for (NSW) v Chidgey [2008] NSWCCA 65 at [64], [68] and [81]-[86].
In my view, in seeking the production of documents beyond 19 October 2010, the accused is indeed is fishing for the possibility that Gattellari's position fluctuated after 19 October 2010, in circumstances where there is not even the slightest suggestion to that effect, and where such evidence as is available tends wholly to the contrary.
There is nothing whatsoever to suggest that after Gattellari commenced to speak with the police on 19 October 2010, and make admissions as to his involvement in the deceased's murder, he asserted any contrary position to his solicitor. In particular, Mr Ghedia was present on 19 October 2010 when Gattellari made his statement admitting his involvement. It would be an extraordinary set of circumstances if Gattellari's position in his dealings with police thereafter differed from that which he adopted in his dealings with Mr Ghedia, where Mr Ghedia continued to act for Gattellari right up until the day of his sentence. For Mr Ghedia to have done so in such circumstances would, in my view, be highly unlikely. It would mean that he acted for Gattellari when given two sets of instructions which were diametrically opposed to each other.
Senior counsel for the accused relied on the fact that a previous subpoena issued by the Crown to Mr Ghedia sought production of documents based on an identical date range as that in the current subpoena. Even if that is the case, the legitimacy of a subpoena, and in particular the existence of a legitimate forensic purpose, is not to be determined solely according to the period within which production of material is sought.
I am therefore not satisfied that any legitimate forensic purpose justifying the production of documents beyond 19 October 2010 has been made out. Accordingly, I make the following orders:
1. Mr Sundip Ghedia is to be excused from any obligation to produce to the Court the documents set out in the schedule to the subpoena issued on 8 March 2018.
2. Mr Sundip Ghedia may discharge his obligation under the subpoena by producing all file notes, diary notes, conference notes and correspondence relating to his representation of Fortunato Gattellari between 13 October 2010 and up to and including 19 October 2010.
[2]
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Decision last updated: 26 April 2018