R v Ronald Edward Medich (No. 39)

The Crown has sought to tender evidence of legal costs paid by the accused in the course of, and/or as a result of, litigation in which he was engaged against the deceased and/or the deceased's entities. Objection has been taken on behalf of the accused to some, but not all, of that evidence. In order to deal with this issue it is necessary for me to briefly record some matters of context.

It is part of the Crown case that the accused was motivated to kill the deceased, and later intimidate the deceased’s wife, because of a series of disputes in which they found themselves, which ultimately led not only to what might be described as a "falling out" between them, but also to litigation in this Court as well as (for a period) in the Federal Court of Australia. In the course of her opening address, the Crown Prosecutor said the following (commencing at T97.4):

It will be evident from that passage of the Crown’s opening address that an aspect of the motive upon which the Crown relies arises from the cost, to the accused, of the litigation against the deceased. As I noted a moment ago, the accused raises no objection to much (indeed, to the majority) of the evidence of such costs. However, an objection has been raised to that part of the evidence relating to the costs incurred by the accused in what has been referred to in the trial as the “Tilley proceedings".

In her opening address (commencing at T99) the Crown took the jury to what she referred to as "the disputes between the accused and the deceased". The second of those disputes centred upon the Tilley proceedings, which the Crown commenced to outline at T106.28. That outline was consistent with that part of the statement of agreed facts (Exh. G) commencing at [32].

Having explained the Tilley proceedings (as well as other disputes which were said to have arisen between the deceased and the accused) the Crown then said in her opening address (commencing at T131.6):

On the present application, two bundles of documents setting out the costs were tendered, although as matters transpired much of that material was extraneous to the real issue that I have been asked to determine. Also tendered was the declaration of trust referred to in [60] of Ex G as outlined above.

Mr John Kelly of senior counsel, who acted for the accused in the Tilley proceedings, was called to give oral evidence on the present application. Having said (commencing at T2582.15) that the Tilley proceedings had ultimately settled, Mr Kelly gave the following evidence:

…

In the course of Mr Kelly's cross-examination, a copy of a cross-summons which was filed in the Tilley proceedings was tendered. That cross-summons, which Mr Kelly drafted, was brought by the accused, his wife Odetta, and Ron Medich Properties Pty Ltd against the deceased. It sought a number of orders against the deceased, including an order for equitable compensation.

When cross-examined, Mr Kelly gave evidence (commencing at T2585.33) that the Tilley proceedings had been "amicably resolved":

Mr Kelly described (commencing at T2586.7) the accused as being "happy" about the fact that he had been asked to pay the deceased's costs:

Other evidence given before the jury also bears upon the present issue.

In the course of his evidence in chief, the Crown's principal witness, Fortunato Gattellari (“Gattellari”) gave the following evidence (commencing at T363.27) of a conversation with the accused which he said took place before he was asked by the accused to arrange the deceased's murder:

Gattellari's reference to those properties of which the accused had “lost control” is capable of being construed as a reference to the properties the subject of the Tilley proceedings.

Earlier, Gattellari had given evidence about the circumstances in which he said that the accused had asked him to arrange the deceased's murder. He was asked (at T347.14):

Commencing at T348.5, Gattellari was then asked:

Later (at T348.28) Gattellari was asked:

There is also evidence of telephone intercepts (Ex BJ) to which the accused was a party and which are also relevant to this issue.

In a conversation with a Mr Howard on 26 May 2010, and in the context of particular proceedings which were then on foot (which I acknowledge were not the Tilley proceedings but other proceedings involving the deceased and/or his entities) the accused said:

In another conversation on 12 July 2010, again with Mr Howard, the accused was recorded as saying:

The schedule sought to be tendered by the Crown in its case establishes that the legal costs paid by the accused for his own representation in the Tilley proceedings were, on any view, substantial. I do not include in that moneys paid to Kemp Strang Lawyers (which are in dispute and upon which I understand the Crown will no longer rely) nor some of the costs paid to Mr Kevin Munro, solicitor. It is apparent on the face of Mr Munro’s Memorandum of Fees that some of the costs set out do not relate to the Tilley proceedings. Nevertheless, the costs paid to Clayton Utz Lawyers by the accused for his representation in the Tilley proceedings amounted to hundreds of thousands of dollars. There is also evidence that pursuant to the Declaration of Trust, and aside from his own legal costs, the accused was required to pay a substantial sum to the deceased. He was also requested to pay the deceased's legal costs in the Tilley proceedings of slightly less than $70,000.00.

The Crown submitted that the evidence of the totality of costs paid by the accused, including those incurred in the Tilley proceedings, was relevant to the issue of motive. It was submitted that the evidence going to the issue of motive should be viewed as a whole, and in the context of other evidence which, if accepted, establishes that the accused had complained about the cost of the litigation in which he had been engaged against the deceased. The Crown submitted that the costs of the Tilley proceedings were relevant to "the accumulation of costs" which the accused had been incurring and which, on the Crown case, had the effect of aggravating his feelings of resentment and hostility towards the deceased.

Senior counsel for the accused objected to the evidence on the ground of relevance and advanced three submissions in support of that position. Firstly, he submitted that the Tilley proceedings should be viewed as being separate from the other litigation in which the accused and the deceased were involved. Secondly, he pointed to the evidence of Mr Kelly that the accused had been "happy" with the settlement of the Tilley proceedings, and that they had been brought to an end. Thirdly, he submitted that in these circumstances the evidence was not capable of being relevant to motive, because there was no evidence that the accused was anything other than happy that the Tilley proceedings had settled.

Relevance of evidence is governed by s 55 of the Evidence Act 1995 (NSW) (“the Act) which is in the following terms:

It is self-evident that the terms of s 55 are wide. The word "could" as it is used in that section has been construed to mean "it is possible that it may": Nye v New South Wales [2002] NSWSC 1270. Moreover, whilst the section requires that there must be some rational effect of the evidence upon the probability of the existence of a fact in issue, that effect may be direct, or it may be indirect: Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 140 ALR 701.

It should also be noted that relevance is to be determined on the assumption that the evidence in question is accepted: Adam v R (2001) 207 CLR 96; [2001] HCA 57.

In light of the way in which the Crown puts its case, and bearing in mind the evidence to which I have referred, the evidence of the costs incurred by the accused in the Tilley proceedings, both in terms of his own costs and those paid to the deceased, is relevant to the relationship which existed between them, and the deterioration of that relationship. These factors (along with others) are relied upon by the Crown case in support of the existence of a motive for the accused to want to have the deceased killed. There is, in my view, a clear and logical connection between the evidence of the costs paid by the accused in all of the proceedings (including the Tilley proceedings) and the issue of motive.

The accused raises no objection to the Crown leading evidence of other costs he incurred in other proceedings. The effect of the position taken by the accused on the present application was to seek to (for want of a better term) "quarantine" the costs in respect of the Tilley proceedings, on the basis that those proceedings were settled, and all costs were paid in full. That, in my view, reflects a somewhat artificial approach. It is also one which overlooks the width of the terms of s 55, as well as the fact that on the evidence, the accused paid hundreds of thousands of dollars to his own lawyers (leaving aside the other costs paid to the deceased) in the Tilley proceedings. The total amount he paid is obviously significant.

It would also be open to the jury to conclude, if Gattellari's evidence is accepted, that the issue of the Tilley proceedings was raised by the accused prior to his engaging Gattellari to carry out the murder. Gattellari has also given evidence which, if accepted by the jury, would support a conclusion that expense of the litigation was a matter which was on the accused's mind. That conclusion is also supported by the telephone intercepts to which I referred. I accept that the statements made in the course of those intercepts were made in the context of other proceedings against the deceased (or more specifically, his estate) which were then on foot, and not the Tilley proceedings. However, when the evidence is taken as a whole, it would be open to the jury to conclude that the totality of the costs paid by the accused in relation to the various proceedings in which he was, or had been, engaged against the deceased, was a source of ongoing consternation to him.

The evidence given by Mr Kelly, assuming for a moment that it will be before the jury in due course, does not mean that the evidence of the costs paid by the accused in the Tilley proceedings is irrelevant. If and when Mr Kelly is called, it will be a matter for the jury to assess his evidence, and the other evidence to which I have referred, and determine what weight is to be attached to it, and what conclusions should be reached from it.

It is for those reasons that in my view, the evidence of the costs incurred in the Tilley proceedings is relevant and admissible.

There is one further matter to which I should refer. In the course of the submissions made in respect of this issue senior counsel for the accused said (at T2589.26):

I pointed out that whether or not the evidence might be misleading was a separate question, and that if the evidence was relevant, it would be admissible subject to it being excluded under some other section(s) of the Act. In response to that, senior counsel said:

It will be evident from the reasons given that I have determined the question before me according to the issue of relevance which was the sole basis of objection advanced on behalf of the accused. However, for the sake of completeness, and to the extent that the statement at [31] above might be construed either as (a) an objection to the schedule which the Crown wishes to tender, or (b) a submission that the evidence ought be excluded under s 137 of the Act (even though no express application for its exclusion on that basis was ever made), I make two observations.

Firstly, s 50 of the Act is in the following terms:

No objection per se has been taken to the schedule which the Crown proposes to tender, other than that outlined. Section 50 facilitates the simplification of issues by the use of a summary or chart of the kind which the Crown wishes to tender. Such a schedule has the effect of alleviating any need for the jury to examine a large volume of documents: R v Pearce [2001] NSWCCA 447; 48 ATR 390 at [125] per Smart AJ (Dowd and James JJ agreeing). The schedule in the present case fulfils the intention which underlies s 50.

Secondly, the suggestion that the schedule may be misleading is, in my view, without substance. There is nothing misleading about it at all. No issue has been taken on behalf of the accused as to the accuracy of its contents. The objections taken to it is limited to that which I have outlined. In those circumstances, there is no potential for the schedule to be misleading or to be misused by the jury in a way which might justify its exclusion pursuant to s 137. I again note that despite the reference to the potentially misleading nature of the schedule, no application was made for its exclusion under s 137. It follows from what I have said that had such an application been made, it would have been rejected.