R v Ronald Edward Medich (No. 33)

An issue has arisen in the course of the Crown's re-examination of Kim Shipley, the former accountant of a number of companies (referred to collectively in the course of the trial as "the electrical companies") in which the accused had a financial interest.

In evidence in chief (commencing at T1457.7) Mr Shipley said the following:

In cross-examination (commencing at T1779.38) Mr Shipley was taken to evidence which he had given in the accused’s previous trial which included the following:

When asked whether he had given that evidence at the previous trial, Mr Shipley responded (at T1779.45):

The cross-examination then continued by reference to paragraph [48] of a statement made by Mr Shipley in 2011 (which is now MFI 68). That paragraph is in (inter alia) the following terms:

The first two sentences in that paragraph are consistent with the evidence in chief of Mr Shipley, but inconsistent with evidence he gave in the previous trial. In the course of the previous trial the contents of paragraph [48] of his statement were drawn to Mr Shipley’s attention and he was asked whether they refreshed his memory of how the accused had referred to the deceased. He replied:

He confirmed (at T1781.10 in this trial) that he had given such evidence before being asked the following (commencing at 1781.13):

I then intervened and the transcript records the following:

In re-examination, the Crown commenced to ask Mr Shipley a number of questions which were obviously directed to eliciting the contents of paragraph [48] of MFI 68. Leave was not sought to put those questions and no objection was taken to the questions on that (or any other) basis. I raised the issue of leave with the Crown who accepted that leave was required. In raising the matter, I had in mind the provisions of s 32 of the Evidence Act 1995 (NSW) (“the Act”) (which govern reviving memory in court), but the Crown properly pointed out that when provided with paragraph [48] of his statement in the last trial, the witness had said (as set out in [6] above) that his memory was not refreshed. The Crown indicated that reliance was placed upon s. 108 (which also requires leave). It was only at that point that objection was taken by senior counsel for the accused.

The issue which has arisen engages a number of provisions of the Act. The first is s 102, which sets out the credibility rule in the following terms:

The word "credibility" is defined in the Dictionary to the Act in the following terms:

Section 108 is in the following terms:

Section 192 sets out a number of mandatory factors that I must take into account in determining whether leave should be granted:

In opposing the application for leave, senior counsel for the accused submitted that Mr Shipley's credit had not been "attacked", and that, in particular, there would be no suggestion made that any evidence that he had given had been fabricated or reconstructed. It was senior counsel's submission that s 108(3)(a) therefore had no application to the present circumstances. He further submitted that all relevant accounts given by Mr Shipley in relation to this issue had been put before the jury. I interpolate that such a submission cannot be accepted. The contents of paragraph [48] are clearly not before the jury. That is the point of the Crown’s questions.

The Crown submitted that the requirements of s 108(3)(a) had clearly been made out, the relevant prior inconsistent statement being what Mr Shipley had said at the last trial (as put to him at T1777.38 to T1777.42 of the present trial).

The first question which arises is whether or not the questions fall within s 108(3). Put simply, the credibility rule in s 103 will not apply if evidence of a prior inconsistent statement has been admitted. Clearly, the statement made by the witness at the last trial, is inconsistent with his evidence in chief. It is also inconsistent with the contents of paragraph [48] of MFI 68. It seems to me that in those circumstances the provisions of s 108(3)(a) are clearly enlivened: see Leung v the Queen [2003] NSWCCA 51 at [83] per O'Keefe J.

Accepting that to be the case, I turn to the provisions of s 192. Whilst the considerations set out in s 192(2) are not exhaustive, they are mandatory.

In terms of s 192(2)(a), the questions to be asked of Mr Shipley are confined to the issue that I have identified and will not be likely to add unduly to the length of the trial.

As to s 192(2)(b) I am not satisfied (at it was not specifically put) that to allow the Crown leave to ask these questions would be unfair to the accused. Indeed, one of the submissions made by senior counsel for the accused was that it would be open to the Crown to seek to elicit this evidence by relying on s 32, the suggestion being that no objection would be taken to that course.

As to s 192(2)(c), the evidence of is of some considerable importance. It is a significant part of the Crown case that the relationship between the accused and the deceased, although once seemingly close, had deteriorated to the point of toxicity, and that it was this deterioration which (at least in part) provided a motive to the accused to kill the deceased.

In terms of s 192(2)(d), the accused is on trial for the most serious offence known to the criminal law.

The matters in s 192(2)(e) have little or no application.

The mandatory factors in s 192 overwhelmingly favour the Crown’s position. Accordingly, leave is granted to the Crown to elicit the evidence in question.