R v Ronald Edward Medich (No. 32)

Yesterday in the course of the re-examination of the witness Senad Kaminic, an application was made by senior counsel for the accused for the discharge of the jury.

In the event that I refused that application, senior counsel submitted in the alternative that he ought to be granted leave to further cross-examine Kaminic. On that occasion, I refused the first application, but granted the second and indicated that my reasons for so doing would be delivered at a later stage. Those reasons now follow.

In the course of cross-examination of the witness Fortunato Gattellari (“Gattellari”) (at T600), Gattellari was asked questions about a conversation he had with Haissam Safetli (who is not to be called by the Crown but who was, on the Crown case, clearly a member of the joint criminal enterprise alleged against the accused) in the early part of February 2009, during which Safetli showed him a newspaper.

In particular, it was put to Gattellari (commencing at T600.23) that Safetli showed him a photograph of the deceased in that newspaper and said to him words to the effect:

Gattellari responded by saying (at T600.47):

Further cross-examination continued (at T601) culminating in the following evidence being given (at T601.24):

In the course of the evidence in chief of Kaminic, the Crown (commencing at T1220) asked him about a meeting at Gattellari's house, at which he and Safetli were present. Kaminic said (commencing at T1220.2) that Safetli had arrived at that meeting carrying a newspaper, in which there was a photo of the deceased. The Crown then asked the following (commencing at T1220.9):

In cross-examination senior counsel for the accused asked the following (commencing at T1295.47):

In re-examination the Crown took Kaminic to the occasion on which he had been shown the newspaper. Commencing at T1383 the following was asked:

I interpolate that no objection was taken to those questions when they were asked in re-examination.

Following re-examination, an application was made by senior counsel for the accused to discharge the jury. The essence of that application, articulated at T1390, was that this was the first occasion on which Kaminic had said that it was his understanding that when the words were said by Safetli, they referred to the accused. Senior counsel submitted, in part:

It was submitted that in all of the circumstances, there was prejudice to the accused as a result of (inter alia) the evidence which was elicited in re-examination not being adduced in chief.

The Crown opposed the application. The application, in my view, had little merit. The proposition that the prejudice to the accused were “irreparable", as advanced by senior counsel, overstated the significance of what occurred.

The primary basis of the application was the proposition articulated by senior counsel at [11] above. That proposition advanced was, in my view, something of a fallacy. The evidence elicited in re-examination did not alter the fact that on the Crown case, the conversation remained one between Safetli and Gattellari. That has been the Crown’s position from the beginning. Even on the evidence of Kaminic, that proposition has never changed. The question put by the Crown was solely directed to Kaminic’s understanding of the conversation. The parties to the conversation, and specifically the fact that Safetli had been talking to Gattellari, had not altered. There was absolutely no basis at all for the jury to be discharged.

The real complaint of senior counsel for the accused was that the evidence should have been led by the Crown in chief. Accepting for present purposes that such complaint was properly founded, it was one which was appropriately remedied by further cross-examination, which ultimately took place pursuant to a grant of leave.

It was for those reasons that the application to discharge the jury was refused.