R v Ronald Edward Medich (No. 22)

The accused has called his son, Peter Medich, as a witness in the defence case. In the course of the evidence-in-chief of Mr Medich, senior counsel for the accused sought to tender evidence of a recorded conversation between the accused and his son which took place on 16 October 2010. The Crown objected to that conversation being admitted.

It is apparent that for a significant time prior to the accused's arrest and as part of the investigation which was then ongoing, police obtained a number of warrants authorising them to intercept various telephone services. It was pursuant to one of those warrants that the conversation in question was recorded at 10.03pm on 16 October 2010. After what might be described as an initial exchange of pleasantries, the following dialogue took place between the accused and his son:

Some social conversation followed, before a passing reference being made (towards the end of the conversation) to the fact that the article had appeared in an edition of The Sydney Morning Herald.

The submissions of senior counsel for the accused centred upon the bolded passage of the conversation. However in submitting that the evidence was relevant, senior counsel made it clear that he was seeking to tender not only that passage, but also some of what had preceded it, in order to place the evidence in what was said to be its proper context.

It was submitted that the bolded passage was relevant because it served as an indicator of the fact that even after the deceased's murder, the accused remained trusting of Gattellari. This, it was said, was relevant in light of the extensive cross-examination of Gattellari as to the nature of his relationship with the accused.

The Crown submitted that the conversation was entirely irrelevant. It was submitted that it amounted to little more than a discussion between the accused and his son about a newspaper article, and an opinion which was said to have been expressed in it. It was further submitted that properly viewed, the entirety of the conversation was entirely irrelevant to any issue in the trial. In the alternative, the Crown submitted that if I reached the view that the evidence was relevant, I should exclude it in the exercise of my discretion under s. 135(b) of the Evidence Act 1995 (NSW) (“the Act”) on the basis that its probative value was substantially outweighed by the danger that it may be misleading and/or confusing.

Because of the way in which the argument developed, the focus is necessarily upon the fundamental question of whether or not the evidence is relevant. Relevance is governed by s. 55 of the Act which is in the following terms:

The effect of s. 55 is that in order for evidence to be relevant there must exist a possibility that it may have some effect, directly or indirectly, on the assessment of the probability of a fact in issue. Viewed in that way, the terms of s. 55 are wide: see Zaknic v Svelte Corporation Pty Ltd (1995) 61 FCR 171.

The essence of the submissions of senior counsel for the accused was that the fact in issue to which the evidence was relevant was the relationship between Gattellari and the accused. Even accepting that such relationship is a fact in issue, the bolded passage of the conversation amounts to nothing more than an expression of opinion by the accused as to who may or may not have been responsible for the deceased's murder. What the accused's opinion might be as to those matters is completely irrelevant to any issue in this trial. To state the obvious, it is a matter for the jury to determine whether they are satisfied beyond reasonable doubt that the accused was involved in the murder of the deceased in the manner which is alleged by the Crown.

Leaving aside the bolded passage, the subject matter of the balance of the conversation is even more remote. It amounts to nothing more than a discussion between the accused and his son about the contents of a newspaper article. I do not have the article before me for the purposes of these reasons but accepting what was said, it appears that there was some opinion expressed in the article about who may or may not have been responsible for the deceased's death. For the reasons that I have just outlined that is a question for the jury. It is not a question for the accused, and it is not a question for his son. Moreover, whether the accused's son thought that that article was (as he put it) "fuckin’ stunning" is completely irrelevant to any issue in this trial, as are the responses by the accused to that particular assertion.

For those reasons the evidence is excluded.