R v Ronald Edward Medich (No. 20)

On 27 September 2013, at the conclusion of the evidence in the accused’s committal proceedings, the presiding Magistrate expressed a conclusion that a reasonable jury, properly instructed, could find that the accused had committed the indictable offence of murder as well as the offence of intimidation. The Magistrate proceeded to address the accused in the following terms:

At the conclusion of those remarks the accused is recorded as stating, amongst other things:

The accused then made a lengthy statement from the body of the court. Because of the issues which have arisen in relation to the admissibility of that statement, it is necessary for me to set it out in full. It was in the following terms:

At that point the transcript reflects that the Magistrate posed a number of further questions to the accused. She asked him, in particular, whether he wished to give any evidence, to which he replied "no". She also asked him whether he wished to call any witnesses on his behalf. He again replied "no". The accused was then committed to stand trial.

Senior Counsel for the accused has submitted, in effect, that it is incumbent upon the Crown to tender the evidence of that statement in the Crown case. The Crown has indicated that it does not propose to do so. In that event Senior Counsel for the accused has indicated that he wishes to tender the evidence in his case. The Crown has objected to that tender. The competing positions of the parties give rise to a series of issues which I am required to address.

Before going any further, it is appropriate to make some general observations regarding the nature of the statement that was made by the accused.

Firstly, it was clearly a prepared statement. So much was confirmed by senior counsel for the accused who referred in the course of submissions to notes which had been prepared by (or for) the accused to assist him in making it. It is properly viewed as a statement was clearly planned and prepared well in advance.

Secondly, it will be evident the statement is generally, if not entirely, self-serving.

Thirdly, at least some of what the accused said in it, and perhaps even the majority of what he said, could not possibly be the subject of admissible sworn evidence.

Fourthly, in some respects the content of the statement touched upon matters which were specific to the committal. For example, there was a reference to evidence given by the witness Gattellari to the Independent Commission Against Corruption. I do not recall any similar reference in the evidence given in this trial. The statement also includes in quite specific terms, references to the evidence heard by the Magistrate in the committal proceedings. In light of these various matters senior counsel for the accused conceded, as I understood it, that if I were to conclude that the statement could be admitted, there would necessarily have to be at least some portions of it which were removed.

The principal submission of senior counsel for the accused was that the evidence was admissible having regard to s. 158 of the Criminal Procedure Act 1986 (NSW) (“the CPA”). That provision is in the following terms:

That submission carried with it the suggestion that the Evidence Act 1995 (NSW) (“the Act”) did not apply. That gave rise to the following exchange (commencing at T1608 L5):

At T1609 L8, Senior Counsel confirmed that it was his position that the statement was admissible, irrespective of any provision in the Act. I queried that position (at T1610 L14) and observed that it would be perverse to conclude that this was evidence, the admissibility of which was not subject to provisions of the Act. Senior counsel responded (in part):

I observed at that point that it was perhaps not a matter of “changing” anything, but rather a matter of concluding that the provisions of the Act applied to this evidence, as they do to all other evidence in a criminal trial. Senior counsel responded by saying:

At T1611 L4, and in an effort to have the accused's position made clear on this issue, the following exchange took place:

However, in submissions in reply, senior counsel appeared to step away from his earlier submission that the Act had no application. In particular, senior counsel said at T1624 L16:

The rationale underpinning the proposition that the Act does not apply is to be found in submissions of senior counsel for the accused at T1609. When I pointed out at T1609 L33, that I perceived a difficulty with what was being put, senior counsel responded by saying:

The reference by senior counsel to “it not (being) in the Evidence Act” was presumably meant to refer to the absence, in the Act, of a particular provision directed specifically to the admissibility of the accused’s statement. There is no such provision but its absence is hardly surprising. The admissibility of evidence is not governed by reference to generically expressed classifications of evidence, such as “a statement made by an accused at the conclusion of his committal proceedings”. The admissibility of evidence is governed by determining:

In my view, the conclusion that the Act applies to the question of the admission of this evidence is incontrovertible. So much is clear from s. 4(1) of the Act which is in the following terms:

Senior counsel submitted that if I came to the conclusion that the Act did apply, the evidence was admissible, subject to the Court’s residual discretion to exclude it under s. 135. As its admissibility, and accepting that the evidence was of a hearsay nature, senior counsel submitted that it fell within s. 60 of the Act, which creates an exception to the hearsay rule in respect of evidence which is led for a non-hearsay purpose.

Senior counsel submitted that the nature and character of the statement made by the accused at the conclusion of his committal was, for all intents and purposes, no different to a statement made by an accused in immediate response to an allegation of the commission of a criminal offence being put to him by a police officer. Senior counsel submitted that there was no material difference between those two circumstances because in each of them an accused person is warned of the fact that he or she is not obliged to say anything unless they wish to do so.

In these respects senior counsel referred me to the decision of Grove J (with whom Barr and Latham JJ agreed) in R v Rymer [2005] NSWCCA 310; (2005) 156 A Crim R 84. I will return to a consideration of that judgment in a moment but, in short, it was the position of senior counsel for the accused that it supported the admission of the evidence. Senior Counsel also submitted that this specific issue had been addressed in the course of a trial by Barr J some years ago, and that his Honour (absent the delivery of a formal judgment) had admitted such evidence.

Senior counsel further submitted that it was not open to draw any comparison between the statement made by the accused at the conclusion of his committal proceedings, and an unsworn (or “dock”) statement of the kind abolished by the Parliament some years ago. He submitted that any attempt to draw an analogy between the two was inapposite, and stressed that the legislative provisions regarding a statement made by an accused at the conclusion of committal proceedings had been left largely untouched by the Parliament over a considerable period of time.

The Crown submitted that senior counsel’s reliance on s. 158 of the CPA was misplaced and that the section did not of itself render the evidence admissible. The Crown submitted that s. 158 was facilitatory in nature, and that it could not possibly be the case that the section was intended to operate in a way which would render admissible, evidence which was otherwise wholly inadmissible. The Crown drew attention to the fact that the Parliament had seen fit to abolish unsworn statements a long time ago, and that there was no discernible difference between such a statement and the statement made by the accused at the conclusion of his committal. It was submitted in these circumstances that to conclude that the evidence was admissible simply by virtue of the operation of s. 158 would be to ignore what had been the expressed intention of the Parliament.

The Crown further submitted that, properly analysed and understood, the accused’s statement was hearsay and did not fall within any of the exceptions to the hearsay rule. The Crown’s ultimate position was that if I were to conclude that the evidence was admissible, I should nevertheless exclude it under s. 135(a) of the Act. In that regard, the Crown submitted that the admission of the evidence created significant unfair prejudice to the Crown due to the inability to test the assertions which were made in the course of it.

It will be apparent from what I have said that there are a number of legislative provisions which potentially bear upon the question of whether this evidence should be admitted. The statement of the accused came about as a consequence of the operation of s. 63 of the Criminal Procedure Act and regulation 3.3 of the Local Court Rules 2009 (NSW).

Section 63 is in the following terms:

Regulation 3.3 is in the following terms:

Section 158 is, as the Crown submitted, clearly a facilitative provision. It does not of itself operate to allow, much less mandate, the admission of the evidence. Indeed, the use of the word "may", as appears in the section, makes it clear that, at the very least, its admission is subject to the Court's discretion.

Accepting that the evidence is relevant, it is clearly of a hearsay nature. The fact that it is so is evident from the terms of the hearsay rule which appear in s. 59 of the Act as follows:

Accepting that the accused’s statement is hearsay, the next determination is whether it falls within an exception to the hearsay rule. In this regard senior counsel for the accused relied on s. 60 of the Act which is in the following terms:

There is some prima facie support for the proposition that an exculpatory statement made by an accused, which is otherwise of a hearsay nature, falls within the ambit of section 60 of the Act: Rymer at [60] and [64] per Grove J. However in my view, the present circumstances are, factually speaking, fundamentally different to those considered by Grove J. In Rymer, what was at issue was whether exculpatory statements in the form of the accused's immediate denial of an allegation put to him by police, should be admitted into evidence. The trial judge had concluded that such evidence was only admissible in the event that the accused himself gave evidence and adopted the statement he had made. Grove J (with whom the other members of the Court agreed) concluded that in taking that position the trial judge had erred. Importantly, for present purposes, his Honour considered a number of authorities which have some bearing upon the determination that I have to make. Commencing at [36] his Honour said:

His Honour went on to make reference to the observations of Lord Wilberforce in Ratten where his Lordship said (at 389):

His Honour also made reference to the judgment in Middleton v R (1998) 100 A Crim R 244, in which Ipp J (as his Honour then was) observed:

In Pearce the Court formulated a number of principles governing the admissibility of evidence of this kind. The third of those principles was enunciated by the Lord Chief Justice in the following terms (at 370):

Grove J’s analysis of these (and other) authorities led his Honour to express the view (at [59]) that absent some particular reason not to do so, exculpatory evidence of the kind under consideration should be put before the Court by the prosecution. However, it is noteworthy that at [58], immediately before expressing that conclusion, his Honour said:

His Honour then continued (at [61]):

The term "contrived" is defined in the Concise Oxford Dictionary, amongst other things, as "planned, artificial and forced".

The statement made by the present accused at the conclusion of his committal hearing, unlike that of the accused in Rymer, was not in the nature of a spontaneous denial in made in response to being initially confronted with an allegation of murder. Rather, it was a prepared statement, in the nature of a contrived denial of the kind to which Grove J referred. The differing circumstances between Rymer and the present case are such that, in my view, there is no warrant to require the Crown to put the accused’s statement before the jury.

At [22] above, I noted the reference by senior counsel for the accused to a decision by Barr J which, it was said, supported the admission of the evidence. Contrary to what was indicated, Barr J did publish a judgment: R v Wood [2008] NSWSC 30 October 2008, Barr J unreported. Moreover, that judgment does not support the admission of the evidence. At [13] and following, his Honour made reference to the decision of Grove J in Rymer. It is evident from what his Honour said at [14] that he did not have the benefit of a copy of the judgment before him when he gave his reasons for excluding the evidence. His Honour was clearly not made aware at the time that he was in fact one of the judges who had expressly agreed with Grove J.

In any event, and more significantly, having made reference to the evidence in Rymer his Honour said (at [15]):

His Honour’s reasons as expressed in that paragraph fortify my view that the nature of the accused’s statement in the present case is markedly different to the nature of the evidence in Rymer.

It is evident that his Honour's judgment was an ex tempore judgment delivered, I infer, with some haste in the course of an important trial. That is not meant in any way to be a criticism of his Honour. I am left to infer from the absence of any reference to the Act, that his Honour was not asked to consider the admissibility of the statement by reference to any statutory provision at all. Accordingly, the judgment does not assist in terms of the applicability of any of the provisions to which I have referred. However, it does support the fundamental distinction between evidence of the kind considered in Rymer and that which I am asked to consider (which was of a similar kind to that considered by his Honour in Wood). It might also be noted that following the sentence imposed by his Honour, the accused in Wood successfully appealed to the Court of Criminal Appeal: Wood v R [2012] NSWCCA 21. His Honour’s decision to reject the admission of the accused’s statement in that case does not appear to have been the subject of any ground of appeal.

Accepting the various distinctions between the present case and Rymer, and bearing in mind the stated position of senior counsel for the accused in the event that the Crown did not lead evidence of the statement, the provisions of s. 135 of the Act become relevant. Section 135 is in the following terms:

As I have noted, senior counsel for the accused made it clear that in the event that I were to find that the Act applied, and that the statement was otherwise hearsay, he relied upon s. 60 to constitute an exception to the hearsay rule. Section 60 renders admissible hearsay evidence when it is led for a non-hearsay purpose. I am left to conclude that the non-hearsay purpose for which the evidence is sought to be led is to establish the fact that these things were said by the accused to the Magistrate, as distinct from the truth of anything which was said. Bearing that in mind, the probative value of the evidence is limited, particularly in light of the circumstances in which the statement was made, and its generally contrived nature.

There would, however, be a significant danger of unfair prejudice to the Crown if the evidence were admitted. Quite apart from any other consideration, the Crown would be precluded from testing any of the assertions made by the accused by cross-examination. The argumentative terms in which some of the statement was phrased would simply exacerbate that danger.

In all of those circumstances, the statement should be excluded under s. 135(a) of the Act.