R v Ronald Edward Medich (No. 41)

The Crown seeks to rely upon the contents of a telephone conversation which took place on 23 June 2010 between the accused and an associate, David Vereker. The tender of that evidence was objected to on behalf of the accused and I heard argument in relation to the issue on 15 March 2018. In the course of submissions, an edited transcript of the conversation was tendered, and the call itself was played. At the conclusion of submissions, I concluded that the evidence was relevant and admissible, and I indicated that I would give my reasons at a later stage. Those reasons now follow.

It is firstly necessary for me to set, out in brief terms, the context in which this issue has arisen.

It is a fundamental plank of the Crown case that the accused bore significant animosity towards the deceased which resulted, amongst other things, in protracted litigation between them in this Court and (for a period of time) in the Federal Court of Australia. Following the deceased's death, that litigation was taken over by his wife who, on the Crown case, was the subject of an intimidation by the accused. The Crown alleges that (inter alia) the animosity held by the accused against the deceased provided a motive for the accused to wish to have the deceased murdered. It is also the Crown case that such animosity resulted in the intimidation which is the subject of the second count in the indictment.

The terms of the alleged intimidation were given in evidence by Kimberly McGurk, the deceased’s wife, before the jury. Mrs McGurk said (commencing at T172.31) that on the evening of 8 August 2010 she was at home with her four children, and a number of police officers were also present. She said that she was made aware that somebody was coming to her house, although she did not know who it was. In the course of that evening a person came to her front door. When asked whether she remembered what had been said, she said at (T.174.18):

Mrs McGurk described feeling shaken as a consequence of what had occurred. She described the attendance of this person at her front door as being a "horrible experience". It is of some significance that there is uncontested evidence in the Crown case that the only person to whom the deceased owed money at the time of his death was the accused.

Against that background, the Crown proposes to lead evidence of a number of intercepted conversations between the accused and others, in the course of which the accused made various statements which, on the Crown case, are relevant to these issues. For example, in a call on 21 June 2010 between the accused and Andrew Howard, the accused is recorded as saying (inter alia) the following (at p 4):

At p 5 of the transcript of that same call, the accused is recorded as saying, amongst other things, the following:

It would be open to the jury to infer that in each of those extracts the accused was referring to Mrs McGurk.

In terms of the call which was the subject of the present application, the following excerpts are relevant.

Firstly (at p 4) the accused is recorded as saying:

Later (at p 4) the following exchange took place between the accused and Mr Vereker:

It is again open to construe the various references to “she” as references to Mrs McGurk. Later on the following page, Mr Vereker is recorded as saying:

Later (at p 6) the accused is recorded as saying:

The accused and Mr Vereker also discussed a suggestion that a Mr Bob Ell (who has given evidence in the Crown case) was assisting Mrs McGurk with payment of her legal fees. Mr Ell gave evidence before the jury that on one occasion, in the period leading up to the deceased's murder, the accused had telephoned him and said in reference to the deceased (at T1834.35):

In the call presently under consideration, the accused made reference to the fact that Mr Ell and others had been (at p 2):

The Crown submitted that when viewed overall, the contents of the conversation exhibited a considerable degree of hostility on the part of the accused towards Mrs McGurk, and that the accused’s reference to giving back "the money that they've stolen, you know" was not inconsistent with the terms of the intimidation of Mrs McGurk. The Crown also submitted that the call was relevant to the animosity held by the accused against the deceased.

Senior counsel for the accused accepted that the evidence was relevant and admissible. However, he submitted that I should exclude it pursuant to s 137 of the Evidence Act 1995 (NSW) (“the Act”). In advancing that submission, senior counsel submitted (at T2362.7) that evidence had "little probative value and was highly prejudicial".

As to the first of those propositions, it was submitted that on an interpretation of the entirety of the conversation, what the accused was really talking about was court proceedings which were then on foot, in which he was seeking the recovery of considerable amounts of money. Senior counsel submitted that beyond that, it was not possible to ascertain the subject matter of the conversation.

As to the second proposition, senior counsel submitted that it was unfair to engage in an interpretation of what was said in the call without further explanation. That interpretation, he submitted, was one appropriately adduced from Mr Vereker, whom the Crown was not proposing to call.

Section 137 of the Act is in the following terms:

The onus is on the accused to prove that the probative value of the evidence is outweighed by the danger of unfair prejudice: R v DG (2010) 28 VR 127.

The term "probative value" is defined in the dictionary to the Act in the following terms:

I emphasise that such definition includes the word "could".

In my view, for the reasons advanced by the Crown, the conversation between the accused and Mr Vereker has significant probative value in relation to both counts in the indictment. As to the alleged intimidation of Mrs McGurk, the accused's reference to the fact that money had been "stolen" is significant. The other references in the call which I have extracted are even more significant, particularly given the terms of the alleged intimidation. There has been no challenge to the fact that such intimidation took place. The fact that the accused may have been speaking in the context of court proceedings which were then on foot has no effect on the probative value of the evidence, and most certainly does not dilute that probative value in any way.

As to the second consideration, and as I pointed out in the course of argument, the question is not (as was submitted by senior counsel for the accused) whether the evidence is prejudicial. Section 137 is directed to the question whether the probative value of the evidence is outweighed by the danger of unfair prejudice. In that regard, emphasis must be given to the word "unfair". Simply because evidence is prejudicial, its exclusion is not mandated by s 137. The present evidence is obviously prejudicial to the accused because a jury might find that it supports the Crown case on either, or both, counts in the indictment. That can be said of every piece of evidence in any Crown case. That is not the issue to which s 137 is directed.

There is no danger, in my view, of any unfair prejudice arising from the advancement of the evidence. The thrust of the submission of senior counsel in relation to that issue was that such danger arose as a consequence of the Crown not calling Mr Vereker. As I pointed out in the course of argument, Mr Vereker cannot be cross-examined about his interpretation of what the accused said. What the accused said is in clear and unequivocal terms. It will be up to the jury in due course to attach such weight to that evidence as the jury thinks fit.

It was for those reasons that I came to the conclusion that the evidence should be admitted.