R v Ronald Edward Medich (No. 42)

Senior counsel for the accused has called Glen Patrick McNamara (“McNamara”) to give evidence in the accused's case. McNamara is currently serving a term of imprisonment following his conviction by a jury for murder and the supply of a prohibited drug. I anticipate that McNamara will be asked questions touching upon issues which have given rise to the Crown's principal witness, Fortunato Gattellari (“Gattellari”) being charged with conspiring to defraud the accused of a substantial sum of money. There have already been extensive references to McNamara's alleged involvement in that offending. In particular, there have been a number of references to his attendance at Cooma gaol on an occasion in 2014 where he is said to have met with some of the alleged co-conspirators. McNamara himself has not been charged with any offence.

At the request of those acting for the accused, I previously made an order pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the CAS Act”) which is in the following terms:

McNamara has attended to give evidence pursuant to that order.

When asked in evidence in chief whether he knew Gattellari, McNamara objected to answering that question, thus engaging the provisions of s 128 of the Evidence Act 1995 (NSW) (“the Act”). The Crown properly reminded me that McNamara had not attended Court pursuant to a subpoena. Without advancing a positive submission that this was the case, the Crown raised whether, in those circumstances, it was open to McNamara to avail himself of the provisions of s 128. There has been some conflict in the authorities as to whether or not a person is able to avail himself or herself of the provisions of s 128 of the Act when answering questions in chief, as opposed to when answering questions in cross-examination.

The decision of the Court of Appeal in Song v Ying (2010) 79 NSWLR 442; [2010] NSWCA 237 is authority for the proposition that if a witness has attended under compulsion, s 128 is available in respect of questions asked in evidence in chief. A contrary line of authority includes a decision of the Family Court of Australia in Ferrall v Blyton [2000] Fam CA 1442; (2000) 27 Fam LR 178

In Ying, Hodgson JA (with whom Giles and Basten JJA agreed) said the following (commencing at [19]):

I interpolate that in the present case there is no issue that McNamara is both competent and compellable.

In Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4, Bromwich J (with whom Kenny and Tracey JJ agreed) concluded that Ying was correctly decided. His Honour engaged in a comprehensive and meticulous review of the relevant authorities and concluded (at [58]) that Hodgson JA’s reasoning in Ying reinforced an understanding that s 128 is directed to preserving the common law right of a witness to refuse compulsion to give evidence on the ground that it might be self-incriminatory, and that it provides compensation and protection to a witness.

Hodgson JA’s view was that where a witness gives evidence under compulsion, s 128 can be invoked by that witness in respect of questions asked in chief. For present purposes, McNamara has attended court, compelled to do so by an order under s 77 of the CAS Act. He is both a competent and a compellable witness. As senior counsel for the accused pointed out, whilst it would be theoretically possible for a subpoena to be served on McNamara in custody, he could not respond to the command contained in the subpoena absent an order being made pursuant to s 77 of the CAS Act.

For those reasons, in my view, it is open to McNamara to avail himself of the provisions of s 128 of the Act.