Medich v R

BATHURST CJ: I have had the advantage of reading the judgments of Hoeben CJ at CL and Hamill J in draft. Their Honours have each made extensive reference to the Crown and the applicant’s respective cases, the evidence given at trial and the submissions of the parties on the appeal. In the circumstances, I will only refer to those matters to the extent it is necessary to understand this judgment. It is convenient to deal with the grounds in the order that they were dealt with by Hoeben CJ at CL.

I agree with Hoeben CJ at CL, subject to the matters below, that for the reasons given by his Honour this ground has not been made out. However, I have reached that view after taking into account the additional material sought to be tendered on the appeal. Unlike Hoeben CJ at CL, I do not think that the material fell within the rubric of fresh evidence. It seems to me that the applicant was entitled to adduce evidence to support the assertion that there was a miscarriage of justice arising from the manner in which the prosecutor addressed the jury on the particular issue.

The material in question is contained in a report prepared by Mr Bryan Collis in his capacity as joint liquidator of Riv Developments Pty Limited (Riv) and certain associated companies, and in an expert report prepared by Mr Matthew Fehon, a partner of McGrathNichol, dated 6 February 2017 and commissioned on behalf of the applicant on 24 January 2017.

Mr Collis was called by the applicant at the trial and mistakenly cross-examined on Mr Fehon’s report. The cross-examination was withdrawn, and the following questions were then asked:

In re-examination the following questions were asked:

In that context the Crown made the following comments in his address, of which complaint is made:

On p 4 of Mr Collis’ report, which was not tendered but which Mr Collis referred to in evidence, it was stated that $8.374 million of Riv funds had been used to discharge the liabilities of Rivercorp Pty Ltd (Rivercorp). It may be that that was what Mr Collis was seeking to explain in re-examination prior to the applicant’s counsel being requested to “get the witness back to the issue”.

Hoeben CJ at CL has identified the complaint as being that the money was deposited by electronic transfer rather than by cash. However, the thrust of the applicant’s complaint seems to me to be that, contrary to the Crown address, $8.347 million was not provided in cash or by electronic funds transfer but was used to discharge certain liabilities of Rivercorp as part of a company reconstruction, and thus was not available to Gattellari. That is supported by the report of Mr Collis.

Notwithstanding, I do not think that there was a miscarriage of justice for the reasons given by Hoeben CJ at CL. First, it can readily be inferred that it was a conscious decision by senior counsel for the applicant not to tender the whole of the report. This was shown by senior counsel’s selective tender of one page, which showed advances being made to Mr Gattellari. That page (Exhibit 72), which was explained in other parts of the report, shows very substantial cash payments (approximately $1.6 million, excluding credit card payments) being made available to Gattellari, thus the thrust of the argument that substantial cash remained available to Gattellari was open. Second, as Hoeben CJ at CL has pointed out, it was not the case that the applicant was seeking to deny that Gattellari had funds available to pay the co-conspirators. To the contrary, it was suggested that he had funds available in furtherance of an enterprise to kill the deceased, but it was an enterprise to which the applicant was not a party. It is for this reason presumably that the applicant tendered Exhibit 72.

For these reasons, even taking into account the additional material, this ground has not been made out.

Although a considerable body of the material to which I have referred below has been set out in each of the judgments of Hoeben CJ at CL and Hamill J, at the risk of repetition it is convenient to set it out in this judgment to explain the conclusion which I have ultimately reached.

Gattellari gave evidence that he had known the applicant for 30 years. He stated that they had a friendly relationship and socialised regularly.

Gattellari stated that Senad Kaminic (Kaminic) was his friend and driver and that he had known him for five years prior to 2008 and 2009.

Gattellari stated that he did debt collecting for the applicant.

Gattellari stated that he did not know the deceased very well. He said that the deceased was not a business associate nor a friend and that he thought he was “a bit of a conman”.

Gattellari stated that he thought he met the deceased at a coffee shop on one occasion and at his office in town a few days later with Kaminic.

Gattellari stated that other than the three or four times he met the deceased he had no other contact. He did not have any phone contact or email contact with the deceased. He said that he told the applicant about the meetings which he had with the deceased. He said that at the time of his meetings with the deceased he knew that he was involved in some dealings with the applicant.

Gattellari gave evidence that Bassam Safetli and Haissam Safetli did debt collecting work for the electrical companies in which he and the applicant were involved.

Gattellari gave evidence that towards the end of 2008 and early 2009 he noticed a change in the relationship between the applicant and the deceased. He stated that they had a pretty severe falling out over some business dealings and that the applicant was quite verbal about the problems he was having. Gattellari said that to his knowledge the applicant had given the deceased $14 million or $15 million to invest in certain ways and that he (the applicant) became aware of the fact that the deceased was using that money for his own purposes.

Gattellari gave evidence that at some time – he could not remember the date –, after the Safetlis had done one of their debt collecting jobs, Bassam Safetli said to him, “[i]n the future, if you ever need anything heavier or you want the final job done, we would be happy to do it”. Gattellari said that later on in the conversation it became clear what was meant by the final job.

Gattellari stated that on one occasion he recalled an incident where the applicant was angry and upset and asked him if he could possibly help him by finding someone to “kill the bastard”. He stated that that was at the time the court cases involving the applicant and the deceased were ongoing. Gattellari said that this took place in the applicant’s office whilst the door was closed. He stated that he thought the applicant was just blowing off steam and getting very annoyed about what was happening. He said that he turned around and said to the applicant, “[a]re you sure you know what you are saying, are you sure you really want to do that?”. He claimed that the applicant made it clear that that was exactly what he wanted done.

Gattellari stated that reference to Mrs McGurk came up some time later. He said that he could not remember whether it was days or weeks later but the applicant mentioned that if and when he did find someone to kill the deceased he wanted his wife paid a visit to convince her that it was time to pay all her debts. Gattellari said that after that conversation he told Kaminic about it, and Kaminic said, “[t]he boys said they might be interested in doing something like that. Why don’t we ask them?”.

Gattellari gave evidence that he had a conversation with the Safetlis a few days after the discussion with the applicant in his office. During the course of that conversation, Gattellari said to Bassam Safetli, “[y]ou mentioned to us last time that you would be prepared to do the final job, as you put it. Do you still think you want to do that?”. He said that Bassam gave it a thought for a moment or two, looked at his brother and said, “[w]ell we’ll certainly think about it, yes”. Gattellari said that he asked what the cost would be, and Bassam Safetli said, “[w]ell, we’ll have to talk about that”. Gattellari also said, “I don’t know whether they actually told me on that day or whether we met again the following day”. He said they discussed the matter between the two brothers and came back with a price and an agreement to do it. He said that either later in the meeting or a day or two later, Bassam said that they were “prepared to do it” and that they “wanted to charge us $300,000 to do the murder, and they wanted some cash upfront for surveillance”.

Gattellari said that he subsequently told Medich that he had found someone to carry out his wishes and that the murder would cost $300,000. He said that Medich said, “[t]hat’s fucking expensive”, and Gattellari replied, “[y]ou want him dead, so if you think it’s too expensive, let’s just forget about it”. He said that Medich said, “[n]o, no, he’s got to go. I’ll get you the money.” Gattellari said that by that stage the applicant had raised the intimidation of Mrs McGurk with him. Gattellari said that he raised it with the Safetlis, saying that “apart from the murder, … there was a second phase to be carried out, … [t]he guy who wanted this done also wants the man’s wife intimidated to pay back certain moneys that were loaned”.

Gattellari said that between the time that the applicant had asked him to find someone to kill the deceased and the deceased’s death, he was still seeing the applicant on a day-to-day basis. He recalled that the applicant made some comment that the deceased was put in charge or in control of some properties that the applicant owned, and that he (the applicant) had lost total control of those properties and was doing all he could to get back the control. Gattellari stated that that was prior to him asking to find someone to murder the deceased.

In cross-examination, Gattellari gave the following evidence:

Gattellari was further questioned about a meeting at his house in early February 2009 and gave the following evidence:

He was subsequently asked the following questions concerning discussions with the Safetlis:

He then denied that at that time he asked the Safetlis to do surveillance of Mr McGurk, and that the comment about being willing to kill someone was referring to Mr McGurk.

Early in his evidence, Kaminic was asked about a time when he went to a courthouse in Sydney for a court case relating to the applicant. He said that he drove Gattellari to the city that day. He then gave the following evidence:

Kaminic stated that this occurred at the beginning of February 2009.

Kaminic was then asked about a subsequent meeting between him, Gattellari and the Safetlis. His evidence was to the following effect:

Kaminic was then asked questions concerning reporting the surveillance of the deceased to the applicant. He gave this evidence:

Kaminic was then examined on a meeting in which he was partly involved some two weeks after the handing over of the CDs. He gave the following evidence:

Kaminic was subsequently asked further questions about the reasons for the surveillance. He gave this evidence:

In cross-examination Kaminic was asked questions concerning a meeting at Gattellari’s house which took place around the time of his birthday. It does not appear to be disputed that this was the same meeting about which he was asked in chief and in respect of which I have set out his evidence at [32] above. In cross-examination he gave the following evidence:

He was then shown an induced statement he made to the police in November 2010 and was asked the following questions:

The photograph but no other part of the article was tendered.

Kaminic was subsequently asked in cross-examination a question to the following effect:

Objection was taken to the question on the ground that it would require hearsay evidence. During argument on the objection, senior counsel for the applicant stated that the alleged conversation took place between 1 February and about 10 February 2009. He submitted that it was a preliminary step that led to the firming up of the final agreement to kill the deceased.

In response, the Crown Prosecutor made the following submission:

The Crown Prosecutor also submitted that other statements made by Haissam Safetli around the same time – for example, “[h]e’s causing you a lot of problems, you’ll have to kill this guy” – were led in fairness to the accused and also to put in proper context the evidence as to who Mr Gattellari turned to once the accused had made a decision that the deceased should be killed.

This is of importance because part of the complaint made under this ground is that the Crown, whilst asserting that their case was that the joint criminal enterprise with the accused was entered into subsequent to the conversations in early February, the re-examination effectively changed that case.

The re-examination of Kaminic of which complaint is made was as follows:

No objection was taken to this evidence at the time it was elicited, but at the conclusion of the re-examination, senior counsel for the applicant applied to discharge the jury. The argument in support was as follows:

The prosecutor then addressed shortly to the following effect:

Senior counsel for the applicant then made the following submissions in reply:

I have set out the arguments in detail because it is important to identify the two complaints that were made. First, and perhaps most importantly, having regard to the submissions on appeal, it amounted to a change in the Crown case. Second, the evidence should have been led in chief. There was no objection taken to the evidence on the ground that Kaminic’s understanding was irrelevant, and no application was made that, in the event the discharge application was unsuccessful, the jury be directed to disregard the evidence.

The trial judge rejected the application: R v Medich (No 32) [2018] NSWSC 253. In his judgment, after recording the evidence complained of, the trial judge made the following remarks (at [10]-[15]):

Thereafter, pursuant to leave, senior counsel for the applicant further cross-examined Mr Kaminic. The cross-examination was to the following effect:

The evidence elicited in re-examination was adverted to briefly in the address of both the Crown and the address on behalf of the applicant. In closing, the Crown made it clear that it contended that the enterprise was agreed upon between sometime in early March and June 2009. In that context, the Crown made the following remarks:

The Crown made the following reference to the evidence the subject of the re-examination:

Senior counsel for the applicant dealt with it in the following way:

Senior counsel for the applicant made the following additional references to the conversation:

In his summing-up, the trial judge made no reference to Kaminic’s understanding of the conversation.

The trial judge made the following remarks in his summing-up:

In written submissions filed on behalf of the applicant it was contended that r 4 of the Criminal Appeal Rules (1952 SI 2) (NSW) (Criminal Appeal Rules) did not apply, although it was accepted that the re-examination of which complaint was made took place without objection. I have set out at [44] above the particular portion of which complaint was made during the course of the application to discharge the jury.

It was contended that the Crown sought to prove what the Safetlis understood to be the nature of the unresolved problem that the deceased posed, and to whom, by introducing erroneous and inadmissible assumptions of Kaminic, a course which had not been disclosed prior to the re-examination. It was submitted that Kaminic’s recollection of the state of legal affairs between the applicant and the deceased was not capable of, or admissible to prove, what motivated the Safetlis in conveying what they did.

The submissions noted that at the time of the application to discharge the jury, the Crown had disclosed that it was not part of its case that the Safetli conversation was in furtherance of any joint criminal enterprise with the applicant.

It was submitted that the Crown’s contention that the emphasis placed by the cross-examiner on the word “you” opened the door to the re-examination was wrong. It was submitted that the cross-examination did not explore Kaminic’s state of mind; rather, it explored his recollection of what was said and “how it was said”. In making reference to “how it was said”, the submissions are presumably referring to the emphasis placed by the cross-examiner on the word “you”.

The written submissions contended that Kaminic’s assumption as to the state of mind of the Safetlis was “without foundation, consequently inadmissible and ultimately prejudicial” to the applicant’s case. The submission noted that counsel contended he did not object at the time because he was caught by surprise by the question. It was also submitted that Kaminic’s knowledge of the court proceedings on foot was in fact wrong and contrary to the agreed facts.

The submissions referred to the reasons of the trial judge in dismissing the application. It was submitted that his Honour was in error in characterising the essence of the application as premised upon the fact that the evidence was new and elicited in re-examination. It was submitted that defence counsel was making the point that the undisclosed assumption was not admissible, prejudicial and went to the heart of the defence case. It was submitted in those circumstances that the trial judge failed to take into account the articulated prejudice.

It was submitted that the further cross-examination did not cure the articulated prejudice. It was submitted that the further cross-examination was a forensic position which counsel ought not to have been left to adopt. Referring to the comment by Kaminic in that further cross-examination, namely, “[h]e read the content”, it was pointed out that the newspaper article which was not in evidence made no mention of acrimony between the applicant and the deceased. It was noted that the Crown had the article in its possession. However, it was also in the possession of senior counsel for the applicant and he made no attempt to cross-examine on it or tender it.

It was submitted that a critical aspect of the defence was the doubt engendered by the unchallenged evidence of Kaminic that the Safetlis were to kill the deceased at a time antecedent to any joint enterprise between Gattellari and the applicant. It was noted that the Crown conceded “there was no common purpose” at the time the Safetlis commenced their surveillance and raised the topic of murdering the deceased. In that context, it was submitted that the unfair prejudice occasioned by the evidence was that it was capable of cementing in the minds of the jury, contrary to the proper concessions of the Crown, that the objective of the Safetli plot at the time was for the applicant’s advantage.

It was submitted that the risk of miscarriage was “put beyond doubt” in the Crown’s address when the Crown sought to persuade the jury that the evidence adduced in re-examination and the February surveillance was in furtherance of the joint enterprise. It was submitted that this was inconsistent with the Crown concession at the trial.

It was contended that, contrary to what the trial judge envisaged at the time he considered the discharge application, namely, that Kaminic’s opinion was not probative of much (see [47] above), the Crown amended its case and pressed “the Kaminic assumption” in such a way as to unfairly detract from a doubt raised in the defence case. In that context, it was submitted that the Crown recognised Kaminic’s evidence was in part unfavourable to its case, and that it was accepted by the Crown to be reliable inasmuch as the early February events were not relied upon to prove the applicant’s guilt. It was submitted that contrary to this articulated position, the Crown relied on the re-examination of Kaminic to obscure the problem his evidence presented and to support an inference that the early observations of Kaminic were in furtherance of the single enterprise. The written submissions referred in that context to that part of the Crown’s address to which I have referred to at [52] above, particularly the comments concerning the further cross-examination of Kaminic.

At the hearing, senior counsel for the applicant submitted that the case against his client had the following central features. First, that there was a joint criminal enterprise initiated by the applicant. He emphasised that it was not a joint criminal enterprise initiated by one or more of the Safetlis, or that there was any suggestion that there was a joint criminal enterprise initiated by the Safetlis to which the applicant subsequently became a party.

Senior counsel for the applicant referred to what he described as material contradicting the Crown case, including the evidence of Kaminic. He submitted that the chief contradictory element of Kaminic’s evidence concerned the timing and content of the approach by the Safetlis with respect to the killing of the deceased. He submitted that the key quality of the Safetli conversation was that it preceded the institution of the joint criminal enterprise.

In that context, senior counsel for the applicant submitted that the re-examination was an attempt to implicate the applicant before the inception of the joint criminal enterprise. He described the re-examination and “the excess by the Crown” extending beyond the re-examination as an “unsubstantiated and artificial adjustment of chronology and temporal sequence”. He referred to the applicant’s written submissions, pointing out that at the time of the re-examination the Crown’s position could not have been plainer, knowing that the Safetli conversation preceded the applicant’s involvement on the Crown case. He submitted that by the time of the closing address, without any challenge to the evidence of Kaminic, evidence was being turned to account of Safetlis’ conduct in furtherance of the enterprise in which the applicant was a participant.

Senior counsel for the applicant submitted that the re-examination was re-examination which could only elicit assumptions by someone who, upon testing, does not give any evidence about any conversation at the time which would permit an inference to be drawn as to whom the pronoun “you” referred. He described the assumption as “quite unnatural in terms of colloquial language” involving the applicant as the person addressed by the word “you”. He submitted that there was no evidence to suggest that Gattellari was a “surrogate” for the applicant, and that there was nothing evidentiary about Safetli’s assumption. Senior counsel for the applicant also submitted that there was nothing in the agreed facts to show that the applicant and the deceased had any unresolved problems at that time. He also submitted that at the time of the application for discharge, the Crown had stated to the trial judge that it was no part of its case that the Safetli conversation was in furtherance of any joint enterprise with the applicant. In fact, that concession was not made during the application for discharge but, as I have pointed out, in the context of a relevance objection made by the Crown (see [41] above).

In its written submissions, the Crown submitted that there were no objections to the relevant questions but rather an application to discharge the jury. It was submitted in those circumstances that r 4 of the Criminal Appeal Rules applied to ground 4(b).

In dealing with ground 4(a), the Crown submitted that where a judge has refused to discharge the jury and the accused is being convicted, the appeal is not against the failure to discharge the jury but rather against a conviction. The Crown referred in that context to Maric v R (1978) 52 ALJR 631 (“Maric”), Trieu v R [2012] NSWCCA 169 and Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 (“Hamide”).

The Crown submitted that in the present case a chronological consideration of the evidence given by Kaminic demonstrated that the answers in re-examination did not have the significance contended for, nor were they tendered to be used in the way asserted by the applicant.

The Crown referred to the evidence of Kaminic to which I have set out at [30] above. The Crown pointed out that the evidence established that the proceedings in question were instituted by the deceased against Sally Tilley as mortgagee seeking possession of premises at Wolseley Road, Point Piper. It is noted in the statement of agreed facts that the mortgage had been assigned to the deceased by the applicant. The Crown also pointed out that the statement of agreed facts established that the applicant had requested reassignment of the mortgage but that had been refused.

The Crown accepted that the applicant and the deceased were not opposing parties in the litigation, but submitted that that was not determinative as the applicant was sufficiently interested to attend court on that day and to have been concerned that the deceased would not show up. It was submitted that this formed the context of Kaminic’s understanding of the conversation which was the subject of the re-examination.

The Crown also referred to the evidence of Kaminic and the subsequent meeting at Gattellari’s home. I have set out that evidence at [32] above. The Crown referred to Kaminic’s evidence that Gattellari asked the Safetlis to follow the deceased, saying that he would notify Medich to let him know about his movements. The Crown also referred to Kaminic’s evidence of subsequent meetings between him, Gattellari and the Safetlis to which I have referred at [33] above.

The Crown contended that the questions in re-examination were limited to what Kaminic said was his understanding of the conversation, which was relevant because of the emphasis placed on the word “you” by the cross-examiner. It was submitted that senior counsel for the applicant did not dispute that he placed such emphasis on the word. The Crown also emphasised that Kaminic’s response to the terms of the conversation was “[y]es, approximately like that”. The Crown submitted that in those circumstances the re-examination was justified. The Crown also seemed to contend that the evidence was admissible as opinion evidence under s 78 of the Evidence Act 1995 (NSW). The Crown relied in that regard on what was said by White J in Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 at [21]-[27],of which the Crown contended was approved by the plurality in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 (“Lithgow City Council”) at [43]. As will become apparent, I do not consider the evidence admissible on that basis.

However, the Crown further submitted that the evidence did not say anything about the involvement of the applicant in a joint criminal enterprise to murder the deceased either directly or by implication, referring in particular to the evidence of Gattellari’s response, “[w]hy are you thinking like that?”. It was submitted that on Kaminic’s account, Gattellari was surprised by the suggestion and did not embrace it.

At the hearing, the Crown emphasised that on Kaminic’s evidence of the meeting Gattellari did not embrace the Safetli proposal. The Crown pointed out that on the evidence the applicant was first involved at the meeting said to have taken place at his office, to which I have referred at [21] above and [34] above, and which on Kaminic’s evidence the Crown submitted was about mid-March. The Crown also submitted that if there was a pre-existing joint criminal enterprise, the conversation and in particular Gattellari’s response to Safetli’s suggestion did not make any sense.

The Crown also submitted that the answers in re-examination did not have the significance that the applicant sought to attach to them because they were no more than a reference back to the sequence of events Kaminic had earlier described. The Crown submitted that the questions complained of did not “lay the foundation” for an assertion that there had been a miscarriage of justice.

The Crown seemed to accept that, although the trial judge said the principal complaint was that the evidence should have been led in chief, the real complaint was that senior counsel for the applicant was taken by surprise by something which at least represented a shift in the applicant’s case. So far as the passage from the Crown address to which I have referred at [51] above, the Crown submitted that it had forensic purpose having regard to Kaminic’s statement that the surveillance was conducted on behalf of the applicant.

Contrary to the approach taken by Hamill J, I consider it appropriate to deal with ground 4(a) prior to dealing with ground 4(b). This is not only because the primary focus of the submissions of the parties was directed to that ground, but also because the focus of senior counsel for the applicant at the trial was on the question of the discharge of the jury. I have set out senior counsel for the applicant’s submissions at [45]-[47] above where, apart from the assertion that the evidence should have been led in chief rather than in re-examination, he did not submit that it was otherwise inadmissible. Rather, what he focused on was the unfairness which occurred by reason of its introduction in re-examination without notice in circumstances where it was submitted that it effectively involved a change in the Crown case, undermining an important plank in the applicant’s defence, namely, that the joint criminal enterprise was one between Gattellari and the Safetlis to which the applicant was not a party.

In Maric, it was pointed out by Gibbs ACJ at 634 that an appeal in these circumstances is not against a failure to discharge the jury but against the conviction. However, his Honour, with whom Mason and Jacobs JJ agreed, immediately went on to say that in these circumstances he could not see any justification for dealing with such cases on different principles from that which applies in criminal appeals generally (Maric at 634-635).

In Crofts v R (1996) 186 CLR 427; [1996] HCA 22 (“Crofts”), Dawson J, albeit in dissent, made the following remarks at 432 in a passage which has been frequently cited:

The majority, in holding that the trial judge was in error in failing to discharge the jury, expressed the principle in the following terms:

The principles were helpfully summarised by this Court in Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 at [126]:

In Hamide, this Court gave some consideration to the interaction of these principles with the common form appeal provisions in s 6(1) of the Criminal Appeal Act 1912 (NSW). In that case, Bell P noted that at the time Crofts was decided, the relevant provisions of the Victorian legislation contained similar common form appeal provisions. Referring to Weiss v R (2005) 224 CLR 300; [2005] HCA 81 (“Weiss”) and Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; [2012] HCA 14 (“Baiada Poultry”), Bell P emphasised the distinction in s 6(1) of the Criminal Appeal Act between “miscarriage of justice” and a “substantial miscarriage of justice”, leaving open the question of whether the principles in Crofts involved some conflation of the statutory language. His Honour ultimately concluded (at [127]) that the relevant principles that should be applied were those in Crofts, not those in House v The King (1936) 55 CLR 499; [1936] HCA 40. I reached a similar conclusion, expressing the view that the principles established in cases such as Weiss and those which followed it had no application in applying the principles set out in Crofts.

On reflection, I do not think that Crofts conflated the approach mandated by s 6(1) of the Criminal Appeal Act. As was said in Maric, cases involving the discharge of a jury involve the application of the same principles as those in other criminal appeals. Like any other appeal, this Court should determine if there was a wrong decision on a question of law, or on any ground whatsoever there was a miscarriage of justice. If the Court finds error or a miscarriage of justice, it can then go on to apply the proviso in appropriate cases.

I do not think that anything said in Crofts was inconsistent with this approach. As was pointed out in Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 (“Kalbasi”) at [12], any error or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act. See also GBF v R [2020] HCA 40; (2020) 94 ALJR 1037 at [24]. Thus where the application to discharge the jury was based on a wrongful admission of evidence or an error in process, even if the judge applied the correct principles in refusing an application to discharge the jury, it remains necessary for the Court to determine, considering the whole of the record of the trial, whether notwithstanding the error there had been no substantial miscarriage of justice. It is only if the Court reaches that conclusion that it can dismiss the appeal. It was for that reason that the plurality in Crofts stated at 441 that the appellate court must decide for itself whether the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice.

Although it was stated in Crofts that the consideration of whether there was a substantial miscarriage of justice involved the question of whether an appellate court could say with assurance that, but for the omission of the inadmissible evidence a conviction was inevitable, the principles concerning the application of the proviso to s 6(1) of the Criminal Appeal Act laid down in Weiss and subsequent cases should be followed in determining this issue. Those principles were conveniently summarised by Bell P in Hamide in the following terms:

In the present case it does not seem to me that the trial judge applied incorrect principles in his refusal to discharge the jury. Contrary to the applicant’s submission, the trial judge had regard to both complaints made by senior counsel for the applicant in the Court below. I have set out the argument in full (see [45]-[51] above). As I pointed out at [48] above, the two bases were that it amounted to a change in the Crown case and that the evidence should have been led in chief. No submission was put to the trial judge that the evidence was inadmissible, whether led in chief or otherwise.

The trial judge implicitly accepted that there was at least an error in that the evidence should have been led in chief. His Honour dealt with this by granting the applicant’s counsel leave to further cross-examine, an invitation which was accepted. That seemed to me to be an appropriate response to this part of the complaint.

There remains the question of whether what occurred amounted to a change in the Crown case. That was identified by the trial judge as the primary basis for the application. In my opinion, the trial judge was correct in concluding that there was no change in the Crown case. It was not suggested that the applicant was a party to the conversation or had reached an agreement to murder the deceased at that time, either with Gattellari or the Safetlis or both. Importantly, each of Gattellari and Kaminic denied that Safetli’s suggestion was adopted prior to the conversation the subject of the evidence of Gattellari and Kaminic to which I have referred to at [21] above and [34] above respectively. Gattellari denied that the conversation of which Kaminic gave evidence occurred, whilst stating that at some other time Safetli made the suggestion to him.

However, it remains necessary to determine whether notwithstanding that the evidence adduced on re-examination remained available for the jury’s consideration, there was no substantial miscarriage of justice. As will be seen, in dealing with ground 4(b) I have concluded that the evidence was inadmissible. In those circumstances, the question of whether there was a substantial miscarriage of justice resulting from the failure to discharge the jury involves the consideration first, of whether the evidence properly admitted proved beyond reasonable doubt the accused’s guilt of the offence, and second, of whether there was no substantial miscarriage of justice irrespective of the Court’s view on that question: see Baiada Poultry at [29]; Lane v R (2018) 265 CLR 196; [2018] HCA 28 (“Lane”) at [38] and the cases there cited; see also Kalbasi at [12], [15]-[16].

Although I agree with Hamill J that the challenged evidence was inadmissible, I am unable to agree that it constituted a subtle but important shift in the Crown case. Although the Crown case was that the agreement the subject of the joint criminal enterprise was reached no earlier than March 2009, it was open to it to lead evidence of the events which occurred prior to the formation of the enterprise in support of the proposition that it was in fact entered into. Thus, for example, the Crown led evidence from Kaminic of the meeting at the coffee shop on 3 February. Kaminic gave evidence without objection that the applicant was there and was concerned that the deceased would not show up (see [30] above). He gave evidence that the surveillance of the deceased was reported to the applicant. He explained that evidence without objection in the passage to which I have referred to at [35] above, namely that the deceased was not paying his debts to the applicant. Once again, the evidence was not objected to or sought to be limited in any way. Thus, there was relatively clear evidence quite apart from the re-examination that disputes had arisen between the deceased and the applicant as distinct from between Gattellari and the deceased.

It is in that context that the evidence of the meeting said to have taken place at Gattellari’s home falls to be considered. The evidence was given on two occasions. There was little if any difference between the two versions (see [32] above and [36]-[37] above). In particular, on both versions there was nothing to suggest that Gattellari adopted Safetli’s suggestions on his own behalf, much less on behalf of the applicant.

Further, it must be remembered that the only part of the re-examination objected to both in the Court below and on the appeal were the questions directed to the identity of the person to whom Safetli was referring when he used the pronoun “you”. In particular, no objection was taken to the next two questions, “[d]id Lucky Gattellari ever say to you that Michael McGurk was causing him problems” and “[d]id Lucky Gattellari ever say to you that he personally had any problems with Michael McGurk”, to each of which he gave a negative answer (see [40] above).

In the circumstances, the trial judge was correct in concluding that the significance of the answers was overstated by senior counsel for the applicant at the trial. Taken on its own, it would have little if any impact on the jury.

The use made by the Crown of the evidence in her closing address is more troubling. As I have pointed out at [52] above, the Crown after referring to the evidence given in re-examination made the comment “and we certainly know that Mr McGurk was causing the accused a lot of problems”, thus implying that Safetli’s understanding was correct. However, no direction was sought of the use that could be made of the evidence. There was also other evidence that the applicant had problems with McGurk, including the fact that by February 2009, disputes had arisen concerning the Amazing Loans shares and non-compliance with the demand to reassign the Wolseley Road mortgage, in respect of which court proceedings were commenced shortly after the alleged conversation. Further, as I have pointed out Kaminic had given evidence, which was not challenged, that the surveillance was on behalf of the applicant because the deceased was not appearing in court and avoiding the payment of his debts (see [35] above). In his summing-up, the trial judge referred to Kaminic’s evidence on which reliance was placed by the applicant on two occasions without making any reference to the re-examination (see [55] and [56] above).

Hoeben CJ at CL has dealt extensively with the evidence in dealing with the unreasonable verdict ground. Having read the transcript, I agree with his Honour’s analysis. In my opinion, this analysis coupled with the matters to which I have referred above demonstrate that, leaving aside the wrongly admitted evidence, the evidence properly admitted proved the applicant’s guilt beyond reasonable doubt (cf Weiss at [44]; Crofts at 441).

Further, applying the preconditions laid down in Weiss for the operation of the proviso in s 6(1) of the Criminal Appeal Act, this is not a case where the wrongful admission of the evidence was an error which constituted a substantial miscarriage of justice irrespective of the inevitability of conviction: Lane at [38]. Importantly in this regard, I do not consider that what occurred amounted to a change in the Crown case such as to amount to a miscarriage of justice. Further, I do not regard this as an attempt to lead evidence that the Crown believed to be inadmissible (cf Crofts at 442). The Crown was seeking to correct an impression left by what was regarded as an unjustified emphasis on the pronoun “you”. It was entitled to do this but went further, leading evidence which was inadmissible. However, I do not think that that amounted to a substantial miscarriage of justice irrespective of the inevitability of a conviction. Once again, it is important to remember that the only basis on which it was said to be inadmissible was that it was led in re-examination and should have been led in chief. No application was made to the trial judge to direct the jury to disregard the evidence or limit its use.

In these circumstances, ground 4(a) has not been made out.

In my opinion, r 4 of the Criminal Appeal Rules applies to this ground. No objection was taken at the time the evidence was led and it was not put to the trial judge that it was inadmissible, as distinct from evidence which should have been led in chief and was prejudicial because it amounted to a change in the Crown case.

However, having regard to the approach I have taken in relation to ground 4(a), it is appropriate that leave be granted.

In my opinion, the evidence was inadmissible. At most it amounted to Kaminic’s understanding of the identity of the person to whom Safetli was referring when he used the pronoun “you”. His understanding was irrelevant, it not being admissible to prove who in fact Safetli was referring to when he used the pronoun.

The Crown contended that Kaminic’s evidence was admissible as opinion evidence under s 78 of the Evidence Act. I do not agree. Kaminic’s opinion was not based on what he had heard or seen during the course of the conversation. In Lithgow City Council at [43], the plurality stated that the word “perceived” in the s 78(a) of the Evidence Act meant to observe by one of the five senses of sight, hearing, smell, taste or touch. In this case, it could not be said that Kaminic’s evidence was based on an observation in that sense, rather than a deduction from other events. Section 78 of the Evidence Act has no operation in these circumstances.

It follows that, as concluded by Hamill J, there was a miscarriage of justice. However, for the reasons that I have given in relation to ground 4(a), particularly at [95]-[100], I am of the opinion that no substantial miscarriage of justice has occurred and the proviso in s 6(1) of the Criminal Appeal Act is applicable. As I have concluded that none of the other grounds of appeal have been made out, the operation of the proviso can be considered solely by reference to this ground.

In the circumstances, I would grant leave under r 4 of the Criminal Appeal Rules to raise this ground. However, the ground of appeal has not been made out.

The relevant evidence has been set out in the judgments of Hoeben CJ at CL and Hamill J and it is unnecessary to repeat it. I would emphasise the following matters.

First, I am not prepared to accept the submission made on behalf of the applicant in written submissions that there was conscious impropriety by the Crown. It must be said that this proposition was put in far more muted form by senior counsel for the applicant at the hearing of the appeal.

Second, the case is quite different to the authorities relied upon by senior counsel for the applicant in his written submissions. R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345 involved the Crown in closing address making an allegation of conspiracy between witnesses which had no foundation in the evidence and which was not put to those witnesses in any event. Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 involved the prosecutor putting a series of questions to the jury which in effect reversed the onus of proof in circumstances where objection had been taken to those questions in written form. These cases are far removed from the present case.

Third, the cross-examination complained of took place in the context of what might be described as a hotly contested context as to the respective credibility of Mr Loren Gattellari and Mr Peter Medich. In his cross-examination of Mr Loren Gattellari, Senior Counsel for the applicant put to him that Mr Peter Medich said, “[i]t looks like you’re trying to blackmail my old man”, which was denied. In his version of the conversation which took place between him and Mr Loren Gattellari, Mr Peter Medich did not suggest this was said.

I have referred to this cross-examination not to criticise senior counsel for the applicant at trial or to suggest it justified asking questions which were unfair or improper. Rather, I have referred to it to emphasise that there was a real contest as to the purpose of the conversation in which the credit of Mr Loren Gattellari and Mr Peter Medich was a central issue.

Fourth, to the extent that the Crown was criticised for putting to Mr Peter Medich that he did not go to the police, that was the effect of his evidence. It is true that thereafter he gave evidence that he referred the matter to the applicant’s solicitor who told him he contacted the police. There was no evidence to show whether he actually did so.

No objection was taken to the question and r 4 of the Criminal Appeal Rules applies. Even if the basis on which leave should be given is wider than set out in most of the cases on the question, namely, that the effect of the matter complained of meant that the accused lost a chance fairly open of acquittal, or that a necessary element of a fair trial has been overlooked (see Picken v R [2007] NSWCCA 319; ARS v R [2011] NSWCCA 266 at [148]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24] and [25]; cf Greenhalgh v R [2017] NSWCCA 94 at [14]-[16]; Hogg v R (2019) 101 NSWLR 524; [2019] NSWCCA 323 at [68]), it is not sufficient that an appellate court cannot determine a forensic reason for failing to object.

There is involved in this ground two questions in a lengthy and vigorously contested trial. The significance of these questions can be gleaned from the fact that the answers were never referred to during the subsequent course of the trial in senior counsel for the applicant’s address, nor in the summing-up. One reason that senior counsel for the applicant may not have objected is that he regarded the questions as insignificant. Whether or not this is correct, the questions did not deprive the applicant of a chance of acquittal fairly open to him, nor did they result in a trial which was unfair or not according to law.

In these circumstances, leave to raise this ground should be refused.

For the reasons given by Hoeben CJ at CL, ground 6(a) has not been made out, whilst I would not grant leave under r 4 of the Criminal Appeal Rules to raise ground 6(b).

The relevant evidence, the subject of this ground (expressed to be by way of example only), is set out in the judgment of Hoeben CJ at CL at [199]. It is not necessary to set it out in this judgment.

Hoeben CJ at CL and Hamill J have each concluded that the evidence complained of was admissible on both counts. I agree with that conclusion, essentially for the reasons given by Hamill J at [92] of his Honour’s judgment.

There remains the question upon which Hoeben CJ at CL and Hamill J disagreed, that the evidence was such that it necessitated the trial judge giving an anti-tendency direction. In considering this issue it is important to have regard to the summing-up as a whole.

Early on in his summing-up, the trial judge made reference to the recorded telephone conversations between the accused and other parties, including ones with Mr Howard of which the specific complaint is made. The summing-up on this issue was in the following terms:

Thus, early in his summing-up, the trial judge indicated the use to which the evidence which formed part of the complaint could be put, namely, the accused’s state of mind.

Early in his summing-up, the trial judge also identified the need to deal with each count separately. After directing the jury to that effect, he made the following remark:

His Honour also emphasised to the jury that the case largely depended on accepting reliability of a single witness, namely, Lucky Gattellari.

The trial judge then dealt with the evidence concerning the relationship between the applicant and Gattellari, which directly related to the evidence the subject of sub-paragraph (iv) of the complaint. He made the following remarks:

His Honour then made the following additional comment, which directly warned against tendency reasoning:

Subsequently, the trial judge again emphasised to the jury that it was necessary to treat each count separately, although noting that the Crown relied on one joint criminal enterprise.

On the second day of the summing-up, the trial judge returned to the relationship evidence and made a correction to what he had said previously. The correction was in the following terms:

One of the calls which was the subject of that direction was the call of 4 August between the applicant and Gattellari, of which specific complaint is made under this ground.

Thus in my view, the jury were directed as to the manner in which the calls with Mr Howard and the call with Gattellari could be used as evidence of motive and state of mind, and to demonstrate the relationship between Medich and Gattellari. Further, although the case was based on a single joint criminal enterprise, the trial judge emphasised on a number of occasions that each count should be considered separately.

In these circumstances, I do not think that a general anti-tendency direction was necessary. The jury was told clearly what use was to be made of the evidence. I do not think that in these circumstances there existed a significant risk that in some way the jury would adopt tendency reasoning in their deliberations. See JWM v R [2014] NSWCCA 248; (2014) 245 A Crim R 538 at [147]; Toalepai v R [2009] NSWCCA 270 (“Toalepai”) at [49]; Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [39], [108]-[109] (“Hamilton”). The authorities were helpfully summarised by Beech-Jones J in Hamilton when his Honour expressed the principle in the following terms (Adamson J agreeing):

In the present case, senior counsel for the applicant at the trial did not seek an anti-tendency direction so r 4 of the Criminal Appeal Rules applies. Whilst it is correct that irrespective of the forensic approach of trial counsel, a trial judge must give such a direction if there is a real risk of tendency reasoning being adopted (see Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 at [80]; RGM v R [2012] NSWCCA 89 at [63]). For the reasons I have given, the directions were sufficient to obviate any such risk. In the circumstances, there was no miscarriage in justice. Rule 4 of the Criminal Appeal Rules applies, and this ground has not been made out.

Having conducted my own review of the record, I am of the opinion that leave to raise these grounds should be granted. However, for the reasons given by Hoeben CJ at CL, I am of the opinion that neither verdict was unreasonable within the meaning of that expression in the authorities.

In the result I would make the following orders:

HOEBEN CJ at CL:

Count 1 carries a maximum penalty of imprisonment for life, with a standard non-parole period of 20 years. Count 2 carries a maximum penalty of imprisonment for 5 years and/or a fine of $5,500. There is no standard non-parole period prescribed for this offence.

At an earlier trial in 2017 before Bellew J, following the presentation of an identical indictment, the jury were unable to agree in respect of both counts (the first trial).

The second trial commenced before the jury on 30 January 2018 and the jury retired to consider its verdict on 11 April 2018. On 23 April 2018, verdicts of guilty in respect of both counts were returned.

The applicant was sentenced on 21 June 2018. For the intimidation of the deceased’s wife, the applicant was sentenced to a fixed term of imprisonment for 4 years and 6 months, commencing 27 February 2018 and expiring on 26 August 2022.

For the murder of the deceased, the applicant was sentenced to imprisonment with a non-parole period of 27 years, commencing 27 February 2021 and expiring on 26 February 2048, with an additional term of 9 years imprisonment, expiring on 26 February 2057.

There was no issue that Fortunato Gattellari (“Gattellari”) had arranged both the murder and the intimidation and that he had made the payments, either directly or through Senad Kaminic (“Kaminic”) to Haissam Safetli for carrying out the relevant offences. The only real issue at trial was whether the Crown had proved beyond reasonable doubt that Gattellari had done so at the instigation of the applicant.

The applicant has filed a notice containing seven grounds of appeal. The applicant has also filed written submissions (“AWS”). The applicant requires leave to appeal in relation to each of the grounds of appeal as none of them involve a question of law alone and they each involve either questions of fact, or mixed questions of law and fact (s 5(1)(b) Criminal Appeal Act 1912 (NSW)).

There is no appeal against sentence.

While the grounds of appeal and the applicant’s submissions have nominated the unreasonable verdict grounds as Grounds 1 and 2, I propose to deal with the individual grounds of appeal first. This is because when considering the unreasonable verdicts grounds of appeal, it may be necessary to take into account the applicability of one or more of the individual grounds of appeal.

The applicant relies upon the following grounds of appeal:

It was the Crown case that at about 6.25pm on the evening of 3 September 2009, the deceased was shot dead outside his Cremorne home by Haissam Safetli who had been driven to the crime scene by Christopher Estephan (“Estephan”) in furtherance of a single joint criminal enterprise with Gattellari.

It was the Crown case that the applicant, Haissam Safetli, Bassam Safetli, Gattellari and Kaminic were participants in the single joint criminal enterprise.

Almost a year later, on the evening of 8 August 2010, the deceased’s wife participated in a police operation in which a registered informant attended at her home (referred to as “Witness A”) and relayed a message in terms of “pay your husband’s debt”. On the Crown case the debt was the applicant’s. It was the Crown case that instructions as to the terms of the message were passed on to Witness A by Haissam Safetli. The participants in this offence were by this time the subject of electronic and physical surveillance and police were in the premises at the time of the delivery of the message.

Haissam Safetli began assisting police in September 2010 and was arrested and charged with murder and intimidation on 13 October 2010.

Gattellari and Kaminic were each arrested and charged in relation to their involvement in the murder on 13 October 2010. The circumstances attached to their pleas of guilty and discounts for their assistance in the prosecution of the applicant were the subject of evidence and warnings from the trial judge.

The Crown opened on the basis that it was “in or around February or March 2009” that the applicant first approached Gattellari in respect of organising the murder. This was refined in the closing address to “some time in early March 2009” for the first solicitation to murder. There was a later solicitation in early June 2009.

Gattellari testified that “days or weeks” after the applicant solicited the murder (i.e. before the murder) the applicant said that he also wanted the deceased’s wife to be “paid a visit” to convince her to pay debts owed to him.

The Crown sought to prove that both counts on the indictment were committed in the execution of a single joint criminal enterprise. The existence of this single joint criminal enterprise (and not two) was a critical fact that the Crown sought to prove. This was made clear to the jury by the trial judge in his summation of the Crown case.

It was the Crown case that after the applicant approached Gattellari to carry out the dual objectives of the single joint criminal enterprise, Gattellari had a meeting with the Safetli brothers facilitated by Kaminic. The Safetli brothers each indicated their preparedness to participate in the single joint criminal enterprise in return for $300,000 in cash up front for surveillance and expenses. It was the Crown case that each of the Safetli brothers were participants in the murder and Gattellari spoke to both of them in relation to it over the phone and in person.

It was the Crown case that the applicant did two things by way of his participation in the single joint criminal enterprise; he solicited Gattellari and some short time later, provided $500,000 in cash (the enterprise money) in two instalments of $250,000 in pursuit of it.

It was the evidence of Gattellari that he collected this cash from the applicant’s home some weeks after the solicitation. Gattellari did not use these cash monies to pay for the enterprise but distributed these funds “into” various electrical companies which he controlled. The Crown case in opening was that the enterprise money was “absorbed into the electrical companies”. In closing, the Crown case was that the cash monies provided by the applicant were “poured into the companies”.

It was the Crown case that it was the applicant and only the applicant who had a motive to carry out the single joint criminal enterprise and that the applicant had acted upon this motive by his soliciting of the single joint criminal enterprise in early 2009 and paying for it in cash.

There was evidence adduced from Kaminic that Haissam Safetli claimed in early February 2009 that the deceased presented such a problem as to give rise to the need for him to be killed.

Kaminic testified that the conversation referring to the need to kill the deceased came from the Safetli brothers in early February 2009 (the Safetli conversation). Gattellari was said to be present at the time. Kaminic was not challenged by the Crown as to when the conversation took place, nor that it took place before such time as Kaminic was told by Gattellari that “it looks like” the applicant wanted the deceased dead.

Gattellari denied that the Safetli conversation took place but accepted that Bassam Safetli in the presence of Haissam had expressed a willingness to murder unidentified persons when engaged by Gattellari and before such time as the applicant through Gattellari solicited him to murder the deceased.

It was the Crown case that Gattellari had no reason “by himself” to arrange the murder of the deceased.

It was Gattellari’s evidence that the Safetli brothers agreed to commit murder a short time after he approached them on behalf of the applicant. Thereafter, there was a considerable and largely unexplained delay before the murder occurred. It was Gattellari’s evidence that he laundered the remaining enterprise money because of the delay in the execution of the enterprise.

The Safetli brothers were not called in the proceedings.

Gattellari testified that the day after the murder, the applicant told him to hold off on the message to the deceased’s wife because of media interest. It was the Crown case that this aspect of the enterprise was re-instigated months later in 2010. The applicant thereafter provided $100,000 cash for the intimidation which Gattellari collected from the applicant’s Leichhardt office on 30 July 2010. According to Gattellari, $50,000 was paid to Haissam Safetli before 2 August 2010 and the balance some time after the offence from monies retrieved from Gattellari’s safe.

It was the defence case that the applicant did not agree to participate in either criminal enterprise, was unaware of Gattellari’s plans and did not know what motivated Gattellari to act as he did. It was also submitted that the Crown had not negatived possible scenarios where the Safetli brothers of their own motion had committed the murder or alternatively, that Gattellari for his own purposes had arranged the murder but had been careful to suggest at all times that he was only acting on the instructions of the applicant.

The Crown case was that the relationship between the deceased and the applicant soured in early 2009 and by March of that year, the applicant’s hostility gave rise to a motive on his part to arrange both offences because of complicated legal disputes. It was the Crown case that the applicant acted out of embarrassment, anger and frustration with the deceased whom he believed had stolen large sums of money from him. The details of the relevant litigation, both before and after the deceased’s death, were the subject of agreed facts.

The Crown adduced evidence at trial establishing the close relationship between the applicant and Gattellari. The relevance of this evidence was to explain why the applicant solicited Gattellari to commit the two offences and in turn why Gattellari acceded to the applicant’s requests. The submission was to the effect that Gattellari was devoted to the applicant and “prepared to do anything for him”. Gattellari gave evidence that at the request of the applicant he arranged debt recovery and the surveillance of the applicant’s wife.

The telephone services of the applicant, the Safetli brothers, Estephan, Kaminic and Gattellari were intercepted from 10 September 2010 until their arrests.

The Crown placed emphasis on motive residing in the applicant and no-one else. This submission was premised upon there being only one rational explanation for the offences, namely the participation of the applicant.

The applicant referred to and sought to rely on an affidavit of Robyn Richardson, sworn 4 December 2019, which had annexed to it certain financial reports relating to the electrical companies which were under the control of Gattellari. The reports and their attachments were quite voluminous. It was common ground that these documents were in the possession of both the Crown and the defence at the time of the second trial. With one exception neither party sought to rely upon them in the trial ([191] hereof).

In the appeal the applicant disclaimed any reliance upon the documents as “fresh” evidence and submitted that the purpose of placing those documents before the Court was to establish that a submission made in the course of the trial concerning the payment and source of monies in the electrical companies was not supported by the evidence at trial and should not have been made.

The purpose for which the reports were to be relied on by the applicant was variously described as follows in oral submissions in the appeal:

Without going to the other extracts and explanations by senior counsel for the applicant, I am of the opinion that relying on the contents of the annexures to the affidavit and seeking to use them for the purpose of discrediting a submission made in the second trial is an attempt to rely upon this material as “fresh evidence”. The material does not satisfy the requirements for it to be fresh evidence but is new evidence which both parties were aware of and had available at the time of the second trial.

It is apparent from the comments of the Chief Justice that there were very good tactical reasons for senior counsel for the applicant at trial keeping that material away from the jury and not seeking to rely upon it. No attempt has been made to satisfy the strict tests necessary to enable the annexures to the affidavit to be used as fresh evidence for the purpose identified by senior counsel for the applicant (R v Abou-Chabake (2004) 149 A Crim R 417 at [63]; [2004] NSWCCA 356).

Moreover, the purpose identified by senior counsel for the applicant for the use of this material is contrary to the submissions made on behalf of the applicant at trial, in particular:

It follows that I would refuse leave to the applicant to rely upon the annexures to the affidavit.

A consideration of this ground is complicated to some extent by what appear to be two conflicting decisions of this Court, i.e. Armstrong v R [2013] NSWCCA 113 (Armstrong) (Harrison J with whom Simpson and Bellew JJ agreed) and Lyndon v R [2014] NSWCCA 112 (Lyndon) (Basten JA with whom Button J and RS Hulme AJ agreed). The effect of Armstrong is that r 4 of the Criminal Appeal Rules (NSW) does not operate when there is a failure by counsel to object to perceived inaccuracies in the Crown’s address or to its allegedly extravagant or intemperate tone. In Lyndon doubts were expressed by Basten JA as to whether that interpretation was correct.

The Crown in this matter took a conservative approach and dealt with the issue on the alternative basis suggested by Basten JA in Lyndon where his Honour said:

It is common ground that no such objection was taken by senior counsel for the applicant at trial. The fact that no objection was taken at the time of trial is compelling evidence that trial counsel in the atmosphere of the trial saw no injustice in what was done (Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121]). The strong inference is that senior counsel for the applicant had no difficulty with what was said.

The ground of appeal as argued asserts a miscarriage of justice as a consequence of two brief passages in the Crown’s closing address with respect to the issue of what Gattellari did with the cash money that he said the applicant gave him to finance the murder and the intimidation, i.e. the enterprise money. The first passage relates to a submission made by the Crown in respect of a witness called by the defence, Mr Brian Collis (Collis). The second relates to submissions concerning evidence given by a witness called by the Crown, Mr Kim Shipley (Shipley).

As a preliminary matter the Crown challenged the implied assumption by the applicant to the effect that the money referred to in the first impugned passage “was deposited into the bank accounts of the electrical companies”.

The first passage is:

Collis was called in the defence case. He gave evidence in chief that in 2010 he was tasked as liquidator of the electrical companies. He gave evidence of the total amount of payments made to Gattellari (personally) from the electrical companies during the period June 2008 to September 2010, comprising drawings made by electronic funds transfer (including payments to credit cards) and cash cheques. He was not asked questions by defence counsel in relation to whether there were any cash deposits into the electrical companies.

Under cross-examination by the Crown, Collis was asked whether he made any inquiries in relation to cash deposits that had been deposited into the electrical companies. Collis said that he was not the liquidator of the company Rivercorp but that he was aware that it had received close to $9 million “in cash”. He said that he had referred to the deposits in his report at about p3. He clarified, in response to a question from Bellew J, that the precise total cash that had been received by Rivercorp was $8,347,000. There was no issue that Rivercorp was considered to be one of the electrical companies.

In re-examination, in response to a question as to how much of the money “was literally in cash as opposed to cheque and electronic transfer”, Collis clarified that “most of it was done by electronic funds transfer”.

Accordingly, contrary to the applicant’s submissions, the Crown did not assert in closing that Collis had established that “cash currency” in the order of millions of dollars had been deposited into the accounts of the electrical companies between 2008 and 2010. The Crown clearly stated that Collis said that the $8.347 million was “mostly” provided by electronic funds transfer.

The applicant contends that insofar as the Crown’s statement relied upon the evidence given by Collis with respect to the company Rivercorp, the report of Collis did not establish that any cash currency had been deposited “in Rivercorp” in 2009. Significantly, the full report of Collis was not in evidence. Senior counsel for the applicant in the trial did not attempt to introduce the Collis’ report in re-examination but simply relied upon the answer that was given by Collis that “most of it was done by way of electronic transfer”.

Moreover, there is a certain unreality in this ground of appeal. As indicated, Collis was called in the defence case. The purpose of his evidence was to establish that Gattellari had the ability to take money out of the electrical companies and had done so. That was the sole purpose for which he was called. The clear position taken at trial, on behalf of the applicant, was that Gattellari had the ability to take money out of the electrical companies. The reason why this was important for the defence at trial was that it showed how Gattellari could have paid for the enterprise that he had embarked upon by himself, without the need to seek funds from the applicant.

This is quite clear from the closing address to which reference has been made (at [176]) hereof). On this issue at trial, the parties were ad idem. Both the Crown and the defence advanced and accepted that Gattellari had access to large sums of money from the electrical companies. What this ground of appeal appears to be doing is to challenge for the first time matters which were not at issue in the trial.

If there were any doubt on that issue, one only needs to look at that part of the Collis report which was tendered on behalf of the defence as Exhibit 72 (T1082). That document set out a summary of payments that had been made to Gattellari through various of the electrical companies, including payments that were actually made by means of drawing or cashing cheques. The clear purpose of that tender was to demonstrate that Collis’ review of the company records supported that there were cash withdrawals made by Gattellari from the electrical companies. It was that material which formed the basis for the submission in closing address by the defence that there was a capacity for money to be withdrawn from the electrical companies in the form of cash in order to pay for the murder without the need to involve the applicant.

Against that background, it is difficult to see how the impugned passage provides any basis for a miscarriage of justice.

There is a further consideration which is relevant. It arises from the underlying assumption which has already been referred to, i.e. that it was Gattellari’s evidence that he had deposited all the cash enterprise money (except for $45,000) he received from the applicant directly into the electrical companies’ bank accounts. That is not the effect of the evidence.

Gattellari’s evidence was that after the applicant gave him $250,000 on each occasion, apart from providing $45,000 in cash to Kaminic out of the first portion, he had used the money over time for the benefit of the electrical companies. He did not give evidence that he physically deposited the cash monies into the bank accounts of the electrical companies.

In evidence in chief, Gattellari said that he took the first amount of $250,000 home and then removed $45,000 which he gave to Kaminic to give to the Safetli brothers for surveillance and expenses (T357). He placed the remainder of the monies, being $205,000, in the safe at his house. He said “It stayed there for a few, for a short time and I then thought it was going to take some time to get this organised so I put it back into the companies, I gave Mr Shipley some funds to use in the company” (T358).

Gattellari’s evidence was that the applicant gave him the second $250,000 “in exactly the same process as the first” which he outlined in similar terms (T361). He said that he took the money home and put it in his safe for a short time and once again “as nothing was happening I distributed it through the companies into what it was needed for”. There was no issue between the parties that by referring to “the companies” Gattellari was referring to the electrical companies, which were experiencing financial difficulties, and in respect of which the evidence showed that the applicant was the sole investor.

Gattellari was extensively cross-examined as to what he did with the money which he said the applicant had given to him. That, of course, is a different issue to that raised by the first of the impugned extracts from the Crown’s closing address.

The second piece of impugned conduct is that the Crown in her closing address said that Mr Shipley’s evidence was capable of providing support for the enterprise money having been supposedly used as Gattellari claimed (AWS [265]).

The applicant submitted that the submission “misstated the evidence” and that there was “no justification for the Crown’s submission that Shipley had given contradictory evidence on this topic” (AWS [269]). The applicant further submitted “the Crown did not put any question to Mr Shipley which afforded the Prosecutor the opportunity in the closing address to assert that the witness lacked credibility on this topic” (AWS [269]).

In order to assess the validity of these complaints, it is necessary to set out some of the evidence of Shipley. He gave evidence that he observed Gattellari use funds that came through the Riv Group to the electrical companies for his own purposes (T1449). He later gave this evidence:

Shipley also gave evidence about an occasion when Gattellari gave him $150,000 cash from a Myer shopping bag (T1497-1498). Given the timing, the Crown did not submit that this sum, i.e. $150,000 was the enterprise money.

The following evidence was given during cross-examination:

The relevant submission in the Crown’s closing address, which was impugned, was as follows:

It should be noted that the underlined sentence was not included in the extract of the Crown’s closing address relied upon in the applicant’s submissions (AWS [265]). When all the evidence is read, it is clear that the Crown submissions did not misstate the evidence of Shipley. The Crown correctly set out in full the relevant questions and answers that had been given by him in evidence in chief. This included the question by the Crown about whether Gattellari would “provide cash or obtain the funds”.

It follows that the Crown’s statement that Shipley could not “recall” in cross-examination being handed cash in sums over $10,000 was clearly based on the passage in cross-examination (T1776) that has been set out above. There is nothing improper about the Crown pointing out potential inconsistencies in evidence given by a witness. The Crown did not have to utilise s 38 of the Evidence Act 1995 (NSW) before doing so.

Further, given the terms of the questioning in cross-examination, it was open to the Crown to adopt the ultimate position taken which was to raise for the jury’s consideration that they might, in any event, construe the relevant questioning in cross-examination as at least leaving open that Shipley had accepted the possibility that Gattellari had given him cash in sums of up to $10,000. As was made clear by the terms of the Crown’s address, whether the jury ultimately chose to do so was a matter for them. That there was no impropriety in the Crown’s submission in this respect is supported by senior counsel for the applicant not raising any issue at trial in respect of the relevant submission by the Crown. This is now relied upon for the first time by the applicant to allege a miscarriage of justice.

Overall, it is apparent that those two brief passages from the Crown’s closing address by reference to correct statements of questions and answers and transcripts and when read in context would not support a finding that there has been any impropriety and particularly not a miscarriage of justice. This is readily highlighted by the fact that senior counsel in the atmosphere of the trial did not ever refer to these brief passages.

This ground of appeal has not been made out.

In order to understand the submission in relation to what was labelled the “Safetli conversation” at trial, one cannot look at that incident in isolation. Rather, its context needs to be understood and the sequence of events leading up to and following upon it, are important.

The sequence of events can be briefly summarised. The first event which occurred was the “going to court” event. This was described by Kaminic as occurring in the beginning of February 2009. He went there with Gattellari and others. Kaminic gave evidence that it was his understanding that the applicant had a matter in court that day against the deceased and that he thought it was about money.

Kaminic’s evidence was that when they went to court, the applicant appeared to be nervous and concerned about whether the deceased would show up. It was in those circumstances that Kaminic was asked by Gattellari to ring up one of the Safetli brothers about whether the deceased would attend court. Kaminic said that he made the phone call and asked one of the Safetli brothers to go over to the deceased’s house to see where he was and to see whether he was going to be coming to court. Kaminic gave evidence that there was a report back that the deceased had been lost in traffic and as a result it was not clear whether he would be coming to court.

The evidence from Kaminic was that before court there was a group of persons in a coffee shop that included Gattellari and others and as a group they went to court on this particular day. Kaminic and Gattellari only stayed for a matter of minutes. Kaminic’s evidence was that he did not see the deceased at court that day.

There was evidence before the jury in the form of agreed facts that there were proceedings in the Supreme Court that were listed on both 3 and 6 February in relation to what was described as the “Tilley proceedings” which related to a property at Point Piper. The key issue for the applicant in relation to that Point Piper property was that he had assigned to the deceased his mortgages which were secured by it.

The applicant had made a request prior to the court dates of 3 and 6 February for his mortgages to be re-assigned to him (Exhibit G at para 50). That request had been refused by the deceased. What that meant is that at the time of the court attendance on 3 or 6 February 2009, there was a dispute between the applicant and the deceased, related to the matter that was before the court that day.

The Crown noted that earlier in the course of the appeal, Bathurst CJ had asked whether there was any basis for believing that Medich and McGurk had problems or that there was a current court case at the time of the Safetli conversation and the answer given by the applicant was there was not. Contrary to that response, the Crown submitted that the evidence which was just outlined supported the proposition that there was a court case and that while they were not at that point in time directly opposed to each other in the sense of direct adversarial proceedings, there were issues between the applicant and the deceased with respect to these proceedings. The issue was the request for the deceased to re-assign the mortgages to the applicant which had not been complied with. The Crown also referred to Kaminic’s evidence about the level of unease on the part of the applicant in both his demeanour and his concern whether the deceased would attend court or not.

It was Kaminic’s evidence that a couple of days after the court matter, which was about 7 February 2009, there was a meeting with the Safetli brothers at Gattellari’s house. There was no suggestion that the applicant was present and this was when what has been described as the “Safetli conversation” took place. The Crown submitted that the Safetli conversation has to be understood in the context of the earlier court proceedings and the evidence concerning those proceedings given by Kaminic.

Kaminic described how one of the Safetli brothers, Haissam, arrived at Gattellari’s house carrying a newspaper that had a photo of the deceased in it. Inquiries showed that there was a photograph of the deceased in a newspaper on 3 February 2009.

Kaminic gave evidence that Gattellari asked the Safetli brothers to follow the deceased and one of the brothers, Haissam, showed Gattellari the article in the newspaper saying something like “This man is causing you a lot of trouble”. Kaminic’s evidence was that Gattellari replied “What do you mean” and that Haissam then said “He is causing you a lot of problems, you will have to kill this guy”. Kaminic’s evidence was that Gattellari at that point in time looked really surprised and said “Why are you thinking that?” The response from Haissam was “You’ll find out” (T1297).

Kaminic’s evidence was that Gattellari told him that the surveillance was on behalf of the applicant and it was to monitor the deceased’s movements. Based on that evidence, the Crown submitted that what can be taken from that conversation is that there was no embracing of the relevant statement by Gattellari at that point. There was only a question by him about why Haissam was even thinking like that.

The Crown submitted that an understanding of the factual background to the Safetli conversation was crucial in assessing the lengthy submissions that have been made to the effect that this conversation actually supported an alternative joint criminal enterprise supposedly already existing between Gattellari and Haissam Safetli at this time of the conversation. The Crown submitted that when the conversation is properly analysed, it does not support anything more than a throw away statement by Haissam Safetli which was not in any way embraced by Gattellari.

Kaminic described a subsequent meeting where there was a report back on the surveillance that the Safetlis had been carrying out. On that occasion, Haissam Safetli told Gattellari words to the effect of “if you want to go all the way with this we can”. The Crown pointed out that again there was no embracing of that proposition by Gattellari at that point in time.

According to Kaminic’s evidence, the applicant was not present at any of those meetings nor at any of the conversations subsequent to the Safetli conversation.

The Crown noted that there was a sequence of weeks in between these various meetings and that according to Kaminic they took place in mid March. Kaminic gave evidence of Gattellari going to the applicant’s office in Leichhardt and having a private conversation with the applicant while Kaminic was in the reception area. This was the first time that Kaminic had seen the applicant since the occasion of the attendance at court. Kaminic’s evidence was that following the conversation between Gattellari and the applicant, he left the office with Gattellari to drive him home. It was on the way home that Gattellari said to him that it seemed that the applicant wanted to “go all the way”(T1223). This was the first solicitation and on the Crown case the beginning of the single joint criminal enterprise.

Kaminic’s evidence was that after the meeting between the applicant and Gattellari at Leichhardt, Gattellari told him to get in contact with Haissam Safetli in order for the Safetli brothers to come to a meeting. Kaminic described that meeting as occurring the same day, or shortly thereafter, where they all met at Gattellari’s house and Gattellari asked Haissam Safetli whether the offer was still on the table to go all the way and that Haissam confirmed that it was.

Kaminic gave evidence that following the meeting, the Safetlis were to get back to them about the terms and conditions in respect of the murder (T1224).

It was the Crown’s submission that this evidence of Kaminic in relation to the Safetli conversation needed to be understood in the context just set out. It needed to be understood in a context where there was a comment by Safetli during the conversation. It was not embraced by Gattellari. Kaminic described surprise on Gattellari’s part. Gattellari asked what was it about. Kaminic went on to give evidence of a later point in time in mid-March when there was a request from Gattellari to get in contact with the Safetlis in order to discuss the murder and talk about the terms and conditions associated with it (AT 60.20).

The Crown submitted that if there were already a pre-existing joint criminal enterprise between Gattellari and the Safetlis at the time of the Safetli conversation, then Kaminic’s evidence does not make any sense. Why would he need to arrange the meeting for Gattellari where the murder is discussed and the terms and conditions are discussed if there was already in existence this alternative pre-existing joint criminal enterprise? In particular, when it came to re-examination, Kaminic’s evidence needed to be understood against that background and sequence of events.

Gattellari gave evidence that he had asked the applicant about what was going on and was told that the deceased was causing too many problems and that money was missing. That evidence was not challenged, although it was relied upon by the defence at trial to support what was said to be the laying of a false trail by Gattellari at this very early stage in that he was falsely portraying to others that the enterprise was being carried out on behalf of the applicant and not on his own behalf.

When asked by the bench how the matters raised in re-examination could arise from cross-examination, the Crown responded that what had happened in cross-examination was that a particular emphasis was given by senior counsel to the word “you” in the Safetli conversation and that each time that conversation was referred to, there was a particular emphasis given to the word “you”. As a result, the Crown sought to clarify whether that particular emphasis had been given in the relevant conversation (T1383.30).

The relevant questions which were asked in re-examination of Kaminic were:

The Crown justified both questions on the basis that they were seeking further clarification of what Kaminic thought Haissam Safetli meant when he used those words. The Crown also submitted that the sequence of events leading up to the Safetli conversation commenced with the attendance at court. In other words, the mention of Medich did not come “out of the blue”.

The Crown submitted that, as a result, the answers in re-examination did arise from the cross-examination but did not have the significance contended for by the applicant. This was because the jury was hearing that answer in the context of everything else that Kaminic had given evidence about. Kaminic had already said that as at the time of the Safetli conversation he knew that there was a court case going on which involved the applicant and the deceased and he knew that the applicant was concerned about the deceased turning up. This substantially supported Kaminic’s evidence.

I am of the opinion that the first two questions in re-examination did arise from the cross-examination by senior counsel for the applicant. Given the particular emphasis given to the word “you” in cross-examination, it was open to the Crown to seek clarification, i.e. whether what Kaminic heard Safetli say was spoken with the same particular emphasis as was put in cross-examination.

When objection was subsequently taken to the questions in re-examination, one of the complaints relied upon by the applicant was that this was not suitable evidence for re-examination but should have been led in chief. The difficulty with that proposition is that until cross-examination took place, the Crown would not have been aware of the particular way in which Kaminic would be cross-examined. Moreover, as will be subsequently discussed, the probative value of the evidence elicited in re-examination was of very low probative value.

The Crown submitted that a single question of this kind did not lay an appropriate foundation to justify the assertion that there had been a miscarriage of justice when properly considered in context. The Crown further submitted that it did not provide a basis for the discharge of the jury. This was because the judge was alert to the fact that this conversation did not have the great significance that was being attached to it. It did not change the fact that the Safetli conversation still only occurred between Gattellari and Safetli. It did not change the fact that the applicant was not present at that conversation and that Kaminic’s evidence in respect of this answer related back to the earlier sequence of events that had already been led in his evidence.

The Crown submitted that on Kaminic’s account the Safetli conversation was not embraced by Gattellari and the subsequent descriptions of the dealings of Gattellari with the Safetlis supported the fact that there was no pre-existing joint criminal enterprise at the time when the conversation was said to have occurred.

Another reason for ascribing to this ground of appeal a relatively low level of importance and probative value is the nature of the evidence itself. What was being sought by the question, (albeit because of the emphasis given by senior counsel for the applicant to the word “you”), was an opinion (i.e. Kaminic’s) about what somebody else meant when that other person used a particular word. At the very least, any answer to the question would always give rise to an element of speculation.

Accordingly, I find the submissions of the Crown to be persuasive and I accept them.

The reasons of the trial judge for rejecting the applicant’s application to discharge the jury also provide a useful basis against which to judge the significance and seriousness of what had occurred.

The ratio of the trial judge’s decision (R v Medich (No 32) [2018] NSWSC 253) is as follows:

The reasons put forward by the trial judge, familiar as his Honour was with the matter and the atmosphere of the trial, should be given considerable weight. When it is fully appreciated that the evidence was that of Kaminic which was directed to what he said passed between Gattellari and Haissam Safetli, it is difficult to see how what occurred could be regarded as irreparably damaging the applicant’s case.

Significantly, despite references to “unfair prejudice” created by the re-examination, the applicant did not with any clarity identify that unfair prejudice and how it would operate to the applicant’s disadvantage so as to give rise to a miscarriage of justice.

In the appeal the applicant submitted that “the risk of a substantial miscarriage of justice in the failure to discharge the jury” was put beyond doubt when the Crown sought to persuade the jury in final address that the evidence adduced in re-examination as to the Safetli conversation and the February surveillance was in furtherance of the joint criminal enterprise which existed at that time. The applicant submitted that this submission in final address was inconsistent with the Crown concession at trial which was adopted and placed on the record during the course of defence counsel’s cross-examination of Kaminic (AWS [321]), i.e. that the joint criminal enterprise did not come into existence until early March 2009.

This submission is not made out. What the Crown submitted to the jury on this issue in her final address is at T3078. No matter how one seeks to interpret that address, it cannot be made to have the effect sought to be given to it by the applicant. In short, there was no attempt in that part of the final address to persuade the jury that the evidence adduced in re-examination as to the Safetli conversation was in furtherance of the joint criminal enterprise. With great respect, this is yet another attempt to give to the matter raised in Ground 4 a weight which it does not have.

The applicant submitted that r 4 of the Criminal Appeal Rules (NSW) did not apply to either part of Ground 4. I do not agree. It does apply to Ground 4(b) because there was a failure to object to the questions asked by the Crown Prosecutor about which complaint is now made. It is significant that at the time of making the application to discharge the jury (after the evidence had been adduced) senior counsel said that he did not object at the time because he “didn’t know what was going to be happening”. Accordingly, the applicant requires leave of this Court to raise Ground 4(b).

There is a further issue which is important and which has not been answered by the applicant. Ground 4(a) is framed in terms of a challenge to his Honour’s refusal to discharge the jury. When a trial judge has refused an application to discharge a jury following an irregularity, and the accused has been convicted, the appeal then brought to this Court is not against the failure to discharge the jury but against the conviction (Maric v The Queen (1978) 52 ALJR 631 at [634]; Trieu v R [2012] NSWCCA 169; Hamide v R [2019] NSWCCA 219 at [78]). It is for the appellate court to determine whether in the circumstances of the case a miscarriage of justice has occurred which has the effect of depriving an applicant of a reasonable chance of an acquittal (s 6(1) Criminal Appeal Act).

Accordingly, to succeed under this ground it is necessary for the applicant to establish that the admission of the evidence was not only erroneous but was highly prejudicial such as to occasion such a miscarriage of justice. As indicated above, the prejudice is said to arise from the assertion by the Crown that the answers in re-examination allowed an inference that the applicant was involved in the joint criminal enterprise at a time before early March 2009, i.e. at the time of the Safetli conversation. I have already indicated that the treatment by the Crown of that evidence in re-examination in her closing address, did not provide a basis for such a finding.

The evidence adduced in re-examination did not say anything about the involvement of the applicant in a joint criminal enterprise to murder McGurk even by implication. It was clear from Kaminic’s evidence that at the time of the Safetli conversation no “plot” to murder the deceased had been formed, rather Haissam Safetli simply offered the suggestion and Gattellari’s response was “why are you thinking like that?”.

On Kaminic’s account, Gattellari was very surprised by the suggestion and in no way embraced it. Nor on Kaminic’s evidence was this suggestion by Safetli taken up until much later after Gattellari met with the applicant some time in or after March 2009, which was the time that the joint criminal enterprise involving the applicant was formed, according to the Crown’s closing address.

While the killing of the deceased was mentioned during the Safetli conversation, it was clear from Kaminic’s evidence that no agreement or joint criminal enterprise to kill McGurk existed at the time of the conversation and Kaminic’s answers in re-examination can be readily understood in that context.

A reading of that portion of the closing address dealing with the Safetli conversation does not support the applicant’s contention that the Crown relied upon the answers by Kaminic in re-examination to support a proposition that the Safetli conversation was in pursuit of an existing joint criminal enterprise to which the applicant was already a party. Consistent with this there was no complaint by senior counsel for the applicant at trial about the closing address.

In the appeal when asked to explain how the Crown relied upon the Safetli conversation and the answers in re-examination, senior counsel for the Crown responded:

It follows that no miscarriage of justice has been demonstrated by the applicant. This ground of appeal has not been made out.

The impugned cross-examination was at T2829 as follows:

The applicant was critical of those questions because they had the forensic purpose of putting to the witness that he did not report the extortion attempt to police because he (the applicant’s son) knew that to do so would implicate his father in murder. The applicant submitted that the insinuation against Peter Medich was twofold. It suggested that the silence of the witness was probative of his belief that Gattellari was a potentially truthful witness and his belief that the applicant was guilty of murder.

The applicant submitted that the only possible relevance of Peter Medich’s alleged failure to disclose the attempted extortion to the police was that an inference was available that Gattellari was telling the truth and Peter Medich suspected as much. The applicant submitted that there was no evidentiary basis for putting that allegation to Peter Medich and in that regard, the questions were improper and gave rise to a miscarriage of justice.

The applicant submitted that the cross-examination had the improper forensic purpose of suggesting that Peter Medich was engaged in the cover up and concealment of evidence relevant to murder. The applicant submitted that there was no evidentiary basis for this to be put by the Crown Prosecutor to Peter Medich.

The Crown noted that there was no objection to those questions at trial, nor was there any discussion of the issue at trial. The Crown submitted that this militated against the interpretation which was being contended for in the appeal being the first time that this matter had been raised. The Crown submitted that it had been consistently observed by courts that an appeal is not an opportunity for counsel to go through the record of trial in minute detail looking for possible arguments without regard to the manner in which the trial was conducted (Roach v R [2019] NSWCCA 160 at [195]). The Crown submitted that this ground of appeal had the appearance of being the product of such a process.

Significantly, not only did senior counsel for the applicant at trial take no objection to the two questions in cross-examination that are the subject of the ground of appeal but there was no issue subsequently raised at any point in the trial about the questions. Final addresses by both sides went no further than to indicate that there was an issue as to who should be believed, Gattellari’s son or Peter Medich.

It follows, therefore, that r 4 clearly applies to this ground. The fact that no objection was taken at the time of trial by senior counsel for the applicant is compelling evidence that trial counsel, absorbed in the atmosphere of the trial, saw no injustice in what was done: ARS v R [2011] NSWCCA 226 at [148]; Aravena v R.

The application of r 4 in such circumstances is reasonably clear. In Picken v Regina; Regina v Picken [2007] NSWCCA 319 Mason P said at [20]-[22]:

This test was endorsed in Armstrong; Sanchez v R (2009) 196 A Crim R 472; [2009] NSWCCA 171 at [61] (Sanchez), AW v Regina [2009] NSWCCA 1 at [22] and recently in Smith v R [2019] NSWCCA 162.

The Crown submitted that the impugned evidence needed to be read with the evidence which Loren Gattellari (Gattellari’s son) had given earlier in the trial about the terms of a conversation which he had with Peter Medich. The Crown submitted that the whole point of that part of the cross-examination which was now complained of, was to challenge Peter Medich on his version of the content of that particular conversation.

Peter Medich, who was called in the defence case, gave evidence which put the message from Loren Gattellari in terms that suggested Gattellari would falsely say that the applicant was involved in the murder. The Crown submitted that in contrast with that proposition, Loren Gattellari’s earlier evidence in respect of the message to the applicant had suggested that Gattellari was holding out on implicating the applicant but would do so (truthfully) unless financial support was forthcoming.

As can be seen from the competing evidence, Peter Medich’s subjective beliefs as to his father’s involvement or otherwise in the murder were irrelevant. The true issue was his credibility in putting the conversation in terms which carried the opposite implication of that conveyed by the evidence of Loren Gattellari. It was his credit which was being challenged by the Crown in the questions in relation to which objection has been taken.

The competing evidence clearly identified that and the credit of Loren Gattellari as the issue under consideration.

Gattellari’s son gave evidence about a visit to his father in custody (T188.14):

Gattellari’s son then contacted Peter Medich by telephone and arranged to meet with him at a bar in Leichhardt. His evidence about the meeting was as follows (T1881.32):

In cross-examination, senior counsel for the applicant suggested to Gattellari’s son that he went to the meeting to try to blackmail Peter Medich (T1901). Loren Gattellari denied this. The terms of the conversation were put to Loren Gattellari by senior counsel as follows:

Matthew Crockett, who had accompanied Loren Gattellari, gave some limited evidence in chief and in cross-examination said the following (T1633):

Peter Medich put the conversation in the following terms (T2799):

The Crown Prosecutor challenged Peter Medich about his version of the conversation in cross-examination (T2824):

As can be seen from this evidence, there was a clear and significant conflict between the accounts of Gattellari’s son and Matthew Crockett and that of Peter Medich about the conversation. It was in that context that the questions complained were put by the Crown Prosecutor at the conclusion of the cross-examination. Contrary to the applicant’s assertion, there was no “mischief” in these questions from the Crown nor did they impact upon Peter Medich’s knowledge, subjective or otherwise, of his father’s involvement. The challenge was directed to his credibility about the content of the conversation and his motivation for not making a statement about the particular conversation in terms which accurately recounted what occurred because to do so would have implicated the applicant.

It was appropriate for the Crown to challenge the witness in circumstances where the Crown’s submission was that he had not accurately recounted the conversation with Gattellari’s son. Consistent with this, there was no objection taken to the relevant questions by experienced senior counsel who was embedded in the atmosphere of the trial.

In the appeal the Crown put the following submission (AT65):

When the questions and answers are read in context, it is clear that what is involved is a contest between Gattellari’s son and Peter Medich as to who is to be believed as to what was said. Once that is appreciated, the issue between the parties is clear and would have been obvious to the jury.

While the interpretation given to the two questions by the applicant is open if the questions are looked at in isolation, it is not an obvious interpretation and loses sight of what was really in contest, i.e. who was to be believed as to what was said in the conversation. In any event, given the background and context and the fact that no objection was taken, it is difficult to see how any damage was done to the applicant’s case by these two questions. This is particularly so when regard is had to the fact that only a peripheral issue was involved.

The Crown position on appeal was set out as follows (AT68):

In the Crown’s address at trial she posed the competing positions on this issue. On behalf of the defence it was portrayed as an extortion attempt fuelled by greed. The Crown submission was that it was simply a cry for assistance from Gattellari to his son for what he was told by his lawyers after his arrest would be legal fees in the order of $1 million. The real issue was simply one of credit and very much a matter for the jury.

In summary, the matter raised by this ground of appeal was not based on an obvious interpretation of the language used. On the contrary, the focus of the ground of appeal is quite different to what was the real issue between the parties, i.e. who of the two protagonists should be believed. No arguments based on the ground were raised at trial. Finally, the leave of the Court pursuant to r 4 needs to be successfully invoked by the applicant before he can rely upon this ground.

For the above reasons, I would refuse leave to appeal.

Before the trial, objection was taken by the applicant to the admission of the evidence complained of in relation to Ground 6(a). However, senior counsel appearing for the applicant conceded during the course of oral argument that the evidence was relevant. The argument for its exclusion then proceeded solely by reference to s 137 of the Evidence Act.

Contrary to the applicant’s submission at AWS [351] it is clear from the transcript that such a concession was made by senior counsel after his Honour indicated at the hearing on 18 October 2016 that he had read the written submissions.

At that time, the following exchange occurred:

Consistent with that concession, his Honour later indicated in an exchange with the Crown that the argument had “reached a point where there is no issue taken as to its relevance in this case. It is a question of whether or not there is a danger of unfair prejudice” (T13.24).

The Crown noted that in this Court the applicant’s submissions in support of Ground 6(a) did not appear to argue that the trial judge was in error in refusing to exclude the evidence in accordance with s 137 of the Evidence Act. Rather, the applicant appeared to argue contrary to the concession above, that while acknowledging that the evidence was “capable of proving the close bond and trust” between the applicant and Gattellari the evidence was not relevant (AWS [350]-[352]).

The Crown submitted that in the light of the concession by senior counsel at trial, r 4 applies to Ground 6(a). This was because the applicant challenged the admissibility of the evidence on a different basis to that put forward at trial (Vickers v R (2006) 160 A Crim R 195; [2006] NSWCCA 60; Poniris v R [2014] NSWCCA 100 at [55]; JWM v R [2014] NSWCCA 248 at [69]-[73]; Bin Sulaeman v R [2013] NSWCCA 283 at [121]-[132]).

One of the important principles that underlies the application of the discretionary power conferred by r 4 is the principle in adversarial litigation that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest and what lines of argument to pursue (Greenhalgh v R [2017] NSWCCA 94 at [17] (Greenhalgh)). Accordingly, the challenge now mounted by the applicant in respect of his Honour’s judgment needs to be understood and fairly assessed in the context of the concession to which reference has been made.

As stated at other places in this appeal, a failure by counsel to object or to raise an issue at trial about the summing up is usually a reasonably reliable indicator of the adequacy of the summing up and that in the atmosphere of the trial, counsel saw no injustice or error in what was being done (Tekely v R; Nagle v R [2007] NSWCCA 75 at [88], [130]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]; ARS v R at [148]. It is, however, necessary to consider the merits of the ground before deciding whether to grant leave under r 4 to allow the “relevance” ground of appeal to be relied upon by the applicant.

The Crown submitted that any reliance by the applicant upon the summing up in support of Ground 6(a) is misplaced. As was observed by this Court (Bathurst CJ; Hoeben CJ at CL and Simpson J) in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R (Elomar v R) (2014) 316 ALR 206; [2014] NSWCCA 303 at [232]:

In Ground 6(a), the applicant does not challenge the trial judge’s decision not to exclude the evidence under s 137 of the Evidence Act and concedes that the evidence was “capable of proving” the close bond and trust he had with Gattellari, which “was not in dispute” (AWS [354]).

No submissions are specifically directed to this first part of Ground 6, apart from a general assertion at AWS [352]-[353] that the admission of the evidence was contrary to the principle in Qualtieri v Regina (2006) 171 A Crim R 463; [2006] NSWCCA 95 and that it was “not apparent from his judgment that his Honour allowed the admission of the alleged surveillance of the deceased’s wife”.

In relation to Ground 6(b), the applicant argued in essence that the trial judge failed to direct the jury sufficiently as to the relevance of the debt collection and surveillance of Odetta Medich and how the jury could (and could not) use it.

The Crown submitted that those submissions are wrong for the following reasons.

The Crown is permitted to adduce evidence relevant to the nature of the relationship of an accused with another person where it might explain or resolve an issue by placing the alleged events in their true context.

This is particularly so in a case alleging the existence of a joint criminal enterprise where a jury may draw conclusions, absent other evidence, about the nature of the association between the accused and alleged co-offender and where an attack on the co-offender’s credibility (involving a different version of the relationship) is anticipated. This is especially so, where the relationship evidence also has a clear contemporaneity with the course of events pointing to the existence of the alleged joint criminal enterprise.

The Crown relied upon relevant facts in respect of the debt collection and surveillance of the applicant’s wife which were set out in the Crown Case Statement which Bellew J cited in [7] of his judgment (R v Medich (No 8) [2016] NSWSC 1713), namely that:

The relevance of the evidence of surveillance and debt collection carried out on the applicant’s behalf, was identified in precise terms by the Crown in detailed written submissions at the pre-trial hearing before the trial judge.

The Crown noted that its written submissions acknowledged by reference to relevant authorities that a more rigorous approach was required than merely to ask whether evidence went to the nature of the relationship in some way or another. To be admissible, evidence as to background relationship between the accused and the other person must be relevant to a fact in issue (at [37]). The Crown specifically acknowledged that “statements [of principle] cannot be generalised into a proposition that all such evidence is relevant” (at [42]).

The Crown relied upon a number of authorities supporting the admissibility of evidence of a relationship between co-conspirators, including cases involving alleged murder, where evidence as to the background relationship between the accused and other relevant persons was held to be admissible provided it was relevant to a fact in issue and not so remote in time so as to prevent it from being relevant.

The Crown also relied upon the decision in Standen v Regina [2015] NSWCCA 211 where it was held that the improper and corrupt relationship between two conspirators before the formation of the conspiracy, was admissible as the essential background to the conspiracy as well as to rebut the defence position that the relationship was a legitimate one involving the pursuit of genuine business opportunities.

In the written submissions, the Crown set out the relevance of the evidence:

The Crown noted, as previously stated, that the applicant’s objection was by the time of the oral argument, based on s 137 of the Evidence Act. In summary, it was that the evidence of the relationship between the applicant and Gattellari was “obviously preposterous” or “inherently unconvincing” such that, taken at its highest, it had low probative value. The applicant also submitted that unfair prejudice stemmed from the fact that if the evidence were accepted it would establish the applicant as having engaged in uncharged acts of criminality and that no direction to the jury as to the limited basis on which the evidence was led would overcome that prejudice.

His Honour’s judgment identified at [15], that the applicant’s objections to evidence concerning his relationship with Gattellari fell into three categories, of which only categories (i) and (iii) were in issue on this appeal:

His Honour’s summary of the Crown’s submissions included the following (at [24]-[25]):

His Honour noted that “the [applicant’s] principal position”, as per the oral submissions of senior counsel, was that the evidence should be excluded pursuant to s 137 of the Evidence Act ([26]) which included “an acceptance that the evidence is relevant under s 55.”

His Honour referred at [34] to Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17; Ratten v The Queen [1972] AC 378; [1971] UKPC 23; and R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377 as well as Standen v Regina as supporting the proposition that evidence of the kind sought to be led by the Crown may be admissible as “relationship” evidence.

His Honour stated that the “essential issue for determination is whether, the evidence in each case should be excluded under s 137” by reference to principles including those deriving from IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 as to the approach to be taken to the assessment of probative value ([35]-[39]) and to relevant authority on the issue of what unfair prejudice meant in the context of that section ([41]–[42]).

His Honour identified that the facts in issue included whether the applicant was behind the plan to murder the deceased and intimidate his wife (at [40]) and whether the accused recruited Gattellari for the purposes of killing the deceased and intimidating his wife (at [57]).

His Honour’s decision included a statement that “it is obvious that there will be a significant attack on the credibility of Gattellari” and that “[t]he nature and extent of the relationship between the [applicant] and Gattellari … is clearly relevant to, and probative of, a number of facts in issue, and the jury will be directed as to the basis upon which the evidence is led, and the use to which it can be put” (at [57]).

His Honour held that the fact that the applicant had engaged Gattellari to collect debts was probative of the nature and extent of their relationship at material times and was admissible, but that the evidence that such debt collection involved the communication of threats on behalf of the applicant gave rise to a risk of unfair prejudice ([58]-[59]). The jury might engage in a process of impermissible reasoning that because the accused was authorising Gattellari to engage in threatening behaviour on his behalf, he was more likely to have committed one or both of the offences alleged against him. Therefore, to the extent that the evidence of Gattellari’s debt collecting on the applicant’s behalf involved allegations of threats, it was excluded pursuant to s 137 of the Evidence Act.

The applicant asserted at AWS [353] that it was not apparent from his Honour’s judgment that he had allowed the admission of the alleged surveillance of the deceased’s wife. That submission is incorrect in that the evidence of the surveillance of the applicant’s wife was specifically identified in the judgment at [15], [16] and [24]. It was clearly part of the evidence that was objected to but admitted by his Honour. The “one exception” to the evidence of the relationship between the applicant and Gattellari which his Honour did not admit was the evidence in respect of the debt collection involving the communication of threats on behalf of the applicant ([58]-[59]).

The applicant submitted that his Honour failed to adequately specify the relevance of the evidence (AWS [349]-[352]). This submission should be rejected in light of the Crown’s written submissions identifying the relevance, the concession of senior counsel in oral argument as to the relevance of the evidence and the detail contained in his Honour’s judgment.

His Honour summarised the purpose for which the Crown sought to lead its evidence ([16], [18] and [25]). His Honour identified the ultimate issues to which the evidence related as namely “whether the accused was behind the plan to murder the deceased and intimidate his wife” and whether “the accused recruited Gattellari for the purpose of killing the deceased and intimidating his wife”. The basis of the applicant’s criticism of his Honour’s judgment in respect of relevance is not made out.

The applicant accepted that the evidence was relevant because it was capable of proving “the close bond and trust” between the applicant and Gattellari in 2009 and 2010. The applicant challenged that evidence on the basis that the issue was not in dispute at trial and there was other evidence capable of proving it which was not objected to by the applicant. The applicant submitted that as a result, the undisputed evidence should have been excluded.

This submission cannot be sustained. As was indicated in Masri v R [2015] NSWCCA 243 at [56]:

As a matter of principle, it is not for the accused to select what evidence the Crown may lead to prove a particular fact. The prosecution is not limited to relying on only some of the evidence available to it and the availability of other evidence does not in any way reduce the probative value of the evidence objected to (Burrell v R [2007] NSWCCA 65 at [201] and [206]).

Moreover, while the close bond and trust between Gattellari and the applicant might not have been challenged at trial, the evidence the subject of this ground also demonstrated that the business and personal relationship between them was far from conventional. It follows from the above that the applicant has not established that the judge erred in declining to reject the surveillance evidence and the debt collection evidence. This ground should be dismissed.

The gravamen of the applicant’s complaint is that the trial judge did not assist the jury to evaluate the relationship evidence, the subject of Ground 6(a), in a way that did not give rise to tendency reasoning. The applicant did not contend that the evidence constituted “tendency evidence” within the meaning of the Evidence Act. The applicant contended that the evidence had the capacity to provide the foundation for tendency reasoning.

A review of the factual material makes it clear that this was not a case involving a significant risk of tendency reasoning in respect of the relationship evidence. The trial judge nevertheless gave a warning against the misuse of the evidence in this way.

In that regard, the Crown noted that the applicant had omitted from the evidence summarised in AWS [355] an introductory part in which his Honour addressed the relevance of the relationship evidence (at SU [47]-[48]) as follows:

The extract of his Honour’s summing up set out at AWS [355] commenced with the addition of the following words at the beginning:

Immediately following on from that extract at AWS [355], his Honour gave a “context evidence” direction in conventional terms warning the jury against misuse of the relationship evidence. The passage, which is also omitted from this part of the applicant’s submissions, commences (at SU [49]):

It follows that the applicant’s complaint at AWS [356] that his Honour did not identify in summing up how the “background” and the “true nature” of the relationship assisted the jury in evaluating the facts in issue in a way that did not give rise to tendency reasoning is not borne out by a proper reading of the summing up as a whole (as the extracts above demonstrate).

There was clearly sufficient guidance given by the trial judge to the jury as to the legitimate use of the evidence. The above warnings were entirely sufficient to guard against any risk that the jury would use the relationship evidence as tendency evidence (or evidence of bad character).

As the applicant explicitly acknowledged in his subsequent submissions in respect of Ground 7 at AWS [377], a warning against using the evidence of surveillance of the ex-wife and the debt collection activities “for a kind of tendency reasoning” was given yet the applicant nevertheless maintained in respect of Ground 6(b) that “there was a very real potential elevated in this case to a near certainty” that the relationship evidence would be misused by the jury to reason in a tendency manner (AWS [359]).

Consistent with the directions being entirely adequate and appropriate, senior counsel for the applicant did not seek any further direction from his Honour in respect of this issue. Moreover, the direction which it is now said for the first time on appeal was required to be given has also not been formulated by the applicant. In Greenhalgh v R [2017] NSWCCA 94 Basten JA observed (at [21]):

As indicated, the proposed direction was not formulated either in written or oral submissions.

The mistake by his Honour in the summing up which was not corrected by either party to the effect that the surveillance of the applicant’s wife took place before the murder rather than in early 2010 did, if anything, assist the applicant’s case and certainly did not damage it. In any event, the prosecutor had in the closing address correctly identified the date (T2998) and had correctly referred the jury to Matthew Crockett’s evidence as well as Exhibits J and V which showed when the applicant’s wife, Odetta, had gone overseas being when Crockett said that the surveillance ended.

It follows from the above reasons that this ground of appeal has no merit and that leave to rely upon it, pursuant to r 4, should not be granted.

The applicant accepted that r 4 applied to this ground. The submission by the applicant was that the accumulation of errors in this case was of such a kind as to demonstrate that the applicant had lost a real chance (or a chance fairly open) of being acquitted and in such circumstances, leave ought be granted in respect of this ground.

The applicant submitted that there was no question that the evidence tending to establish Count 2 could not be used by the jury to prove by tendency reasoning that the applicant committed Count 1. The applicant submitted that s 97 of the Evidence Act prohibited evidence of “the conduct of a person” being used “to prove” that the person “had a tendency to act in a particular way” or that the person “had a tendency ... to have a particular state of mind”.

The applicant submitted that the items of evidence relied upon as corroborative of the applicant’s concern in the events giving rise to Count 2 were only relevant to prove his agreement to murder (or to intimidate in 2009) on the basis of tendency reasoning. Those items of evidence were:

The applicant submitted that although this evidence was left to the jury by the trial judge, while it was capable of bearing on Count 1, those conversations were not capable of establishing that the applicant had decided to participate in an agreement to murder (or deliver a message to the deceased’s wife more than a year earlier) except via tendency reasoning. The representations of the applicant in July and August 2010 were not capable of attributing to the applicant an intention to join the single criminal enterprise unless the process of reasoning was as follows – it was more likely that the applicant had a state of mind in 2009 to commission violence in respect of his commercial grievances with the deceased because he had such a state of mind in July-August 2010 in respect of the deceased’s wife (who was managing the deceased’s estate).

The applicant submitted that evidence that he was motivated to act in a certain way in mid 2010, and responsive to external factors which arose in 2010, could only prove his likely agreement to the single joint criminal enterprise alleged by the Crown by impermissible tendency reasoning. The jury should have been directed that this evidence was not admissible to prove Count 1.

The applicant submitted that since evidence tending to establish Count 2 could not be used by the jury to prove by tendency reasoning that he committed Count 1, it would follow that the jury should have been directed in that way by the trial judge unless there was no risk that the jury would engage in such reasoning.

The applicant submitted that care was required on the part of the trial judge to identify the confined use that the jury were entitled to make of the evidence adduced in respect of Count 2 in the joint trial, and protection from such misuse materialising rested in, and was properly “confined to the directions given by the trial judge” (DJV v R [2008] NSWCCA 272 at [16]).

It was on that basis that the applicant was critical of the following directions by the trial judge:

The applicant submitted that in accordance with those directions, the jury were directed that it would be open to them to return different verdicts on the two counts and that a verdict of not guilty in respect of one count would require them to consider whether this caused a reasonable doubt with respect to the other. However, there were no directions given to the jury as to how they might reason from a verdict of guilty of one count with respect to the other count. In particular there were no directions to the jury regarding how they might proceed if they were satisfied of guilt beyond reasonable doubt in respect of Count 2 and were considering the implications of that finding in respect of Count 1.

The applicant submitted that the jury should have been directed that:

The applicant submitted that as a result of his Honour’s failure to direct the jury not to engage in tendency reasoning from proof of Count 2 to proof of Count 1 a miscarriage of justice occurred. The applicant submitted that given the failure of defence counsel to seek such a direction, leave to argue this ground should be granted. This was because it was well established that leave should be granted where an applicant establishes that he or she has lost a real chance of being acquitted by reason of the failure to give the direction.

The applicant’s submissions do not have sufficient regard to the way that the trial was conducted at first instance. The Crown case was that the murder of the deceased and the intimidation of his wife were part of the one single joint criminal enterprise which was to kill the deceased and then put pressure on his wife to settle the court disputes in order to get the applicant’s money back.

The Crown alleged that the applicant was a participant in a continuing single joint criminal enterprise which encompassed both counts on the indictment with the agreement with Gattellari having incorporated (from an early stage) both the murder of the deceased and the subsequent intimidation of his wife. The Crown case was that both offences were the subject of the joint criminal enterprise from this early stage because they shared a common motive, in terms of the recovery of millions of dollars that the applicant believed he was owed by the deceased.

The obvious explanation for why senior counsel for the applicant did not seek the directions, the subject of this ground, was because this was the case that had been presented against the applicant at trial.

The evidence in support of the two counts was cross admissible not because of any tendency reasoning, but because it bore directly on the likelihood of the applicant having been party to the single joint criminal enterprise as alleged by the Crown. Given the ongoing nature of the single joint criminal enterprise alleged by the Crown and the shared common motive in respect of both offences, it was clear that the Crown was asserting a continuing state of mind on the part of the applicant. That concept did not involve tendency reasoning. The distinction between the two concepts is subtle but real. This was made clear by this Court (Bathurst CJ, Hoeben CJ at CL and Simpson J) in Elomar v R at [363] where the Court said:

It was because of that reasoning that the jury were directed by his Honour without objection that while they must consider each count separately, the entirety of the evidence was available to be taken into account in respect of each of the counts (SU 17, 34 and 56). The Crown consistently presented its case throughout the proceedings in the way outlined in accordance with the analysis in Elomar v R. In both the opening (T76) and the closing (T2981) address the Crown treated the joint criminal enterprise as an ongoing enterprise encompassing both counts.

Consistent with the way in which the case had been run by the Crown at trial, his Honour said to the jury in summing up:

It should be noted that his Honour also gave a strong direction against any kind of tendency reasoning in the case (see [321] hereof). It is true that this direction was given in the course of his Honour explaining relationship/context evidence and how it could be used. Nevertheless, the warning against any use of tendency reasoning was clear and unequivocal.

It follows that I agree with the Crown’s rejection of the applicant’s submission. The applicant’s agreement to the single joint criminal enterprise could only be proved by the use of tendency reasoning. This submission fails to appreciate that the Crown case involved an allegation of a single joint criminal enterprise being formed in 2009 to murder and intimidate for a common motive which necessarily carried with it an assertion that there was an ongoing state of mind on behalf of the applicant that was alleged to have continued throughout the entire period from the formation of the agreement until both the murder and the intimidation were completed.

It was clear that it was not the Crown case that the relevant evidence demonstrated that the applicant was motivated to act because “of external factors existing in 2010” (AWS [368]). Instead, it was clearly the Crown case that the applicant had been motivated to form the agreement to murder the deceased and intimidate his wife in 2009 due to his significant enmity to the deceased arising from their various business disputes and his determination to have them resolved in his favour, with a view to recovering the millions of dollars he believed he was owed. The Crown consistently maintained that that agreement and the applicant’s associated motivation were ongoing throughout the entire period that encompassed the murder and the intimidation. That included a period in 2010. The 2010 evidence was circumstantial and capable of being relied upon by the Crown as supporting the existence of that single joint criminal enterprise in respect of both counts and the associated alleged ongoing state of mind on the part of the applicant. This did not involve tendency reasoning.

There was no risk, given the way in which the trial had been conducted, and the directions that were given to the jury, that they would have engaged in tendency reasoning in respect of that evidence in proof of Count 1. Importantly and consistent with this, senior counsel for the applicant at trial did not contend that the relevant evidence was not admissible in proving Count 1 nor did he seek an anti-tendency direction in respect of the evidence.

Having regard to the way in which the case was run, and the manner in which senior counsel for the applicant addressed the jury, the process of reasoning advanced by the applicant which relied upon an underlying need for the relevant direction, is rather artificial.

A fundamental proposition that appears to be underlying the applicant’s submissions is an assertion that the evidence in respect of Count 2 did not have any particular probative value “save as via tendency reasoning” in relation to Count 1 (AWS [395]). For the reasons already outlined, such a contention should be rejected. All of the evidence in the trial was admissible in respect of each count without tendency reasoning being engaged. The reasoning behind the direction as to cross admissibility was that the two offences were closely linked together. It is for that reason that they were on the same indictment. That proposition was not challenged at trial.

The position consistently adopted by the Crown at trial was that if the jury was satisfied based on all of the evidence that the applicant had directed the intimidation of the deceased’s wife, the jury could take that into account in deciding whether they were satisfied that the applicant was, as alleged by the Crown, a party to a pre-existing single plan to kill the deceased and intimidate his wife arising from the same motive. Such a process of reasoning did not invoke tendency reasoning given that the Crown was alleging that the applicant was a participant in that single plan from the time of its inception in March 2009 all the way through the period encompassing the murder and the intimidation. This position from which the Crown did not move carried with it an allegation of an associated continuing state of mind on the part of the applicant.

Put another way, what the Crown maintained (as it was entitled to) was that the evidence supported an inference that the applicant in fact had a particular state of mind as a continuous or ongoing one throughout the relevant period from 2009 to 2010 and that the state of mind was confirmatory of the single ongoing agreement alleged by the Crown. This was not tendency evidence and did not give rise to tendency reasoning.

At the hearing of the appeal, the submissions under this ground were given a different emphasis. Senior counsel for the applicant said:

That proposition does not really come to grips with the statement of principle in Elomar v R. In Higgins (a pseudonym) v The Queen [2016] VSCA 47, the Victorian Court of Appeal (Redlich, Weinberg and Osborne JJA) said the following at [19]:

As was observed in Ulutui v The Queen (2014) 241 A Crim R 574; [2014] VSCA 110 at [70] where the evidence “is directly linked to issues which will determine the accused’s guilt, the danger of the evidence being used for propensity may be minimal or non-existent”.

The risk of tendency reasoning in this case was minimal or non-existent because the evidence tending to prove Count 2 was relevant to Count 1 and from the way the case had been conducted overall.

In response to the matter raised on behalf of the applicant in the appeal, senior counsel for the Crown submitted:

I agree with the submissions by the Crown that the single joint criminal enterprise was not an artificial construct designed and intended to enable cross admissibility of all of the evidence. As the Crown pointed out, the trial was run on the basis of a clearly connected series of events and they were directed at achieving an outcome which could not be achieved only by the murder but required the intimidation. It follows that the Crown was entitled to run the case in the way in which it did.

For the above reasons, I am not persuaded that there has been a failure on the part of the judge to give an anti-tendency direction. Accordingly, the applicant has failed to establish that he has lost a real chance (or a chance fairly open) of being acquitted because an anti-tendency direction was not given. It further follows that r 4 has not been satisfied. I would refuse leave to the applicant to rely upon Ground 7.

The principles applying to the consideration of an unreasonable verdict ground were not in dispute. They were clearly set out by the plurality (French CJ, Gummow and Keifel JJ) in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 (at [11]-[14]) as follows:

The application of those principles was recently confirmed by the High Court (Keifel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12; where the Court said at [43]:

In terms of the advantage enjoyed by the jury in seeing and hearing witnesses, the following observations were made by the High Court at [38]-[39]:

The applicant submitted that Gattellari gave contradictory and wholly inadequate evidence on what the Crown asserted to be critical facts of the applicant’s participation in the murder, namely the solicitation and funding of it.

In support of that submission, the applicant analysed the evidence said to give rise to the solicitation of the murder.

The applicant noted that in examination in chief Gattellari could not remember the “exact time” that the applicant first solicited him to murder the deceased and he could not “exactly” remember the words used. He was unable to nominate when the applicant’s solicitation of him took place aside from a general assertion that “it would have been three to six months before the murder” (T359).

The applicant submitted that Gattellari otherwise gave inconsistent evidence in respect of his recollection on this topic, asserting that the first conversation in respect of the solicitation was on the date on which the applicant was in a car accident which other evidence adduced at trial established was 3 July 2009. The applicant submitted that the possibility of the solicitation occurring in July cast doubt upon anything the Safetlis did by way of surveillance and the alleged receipt of monies between February and June 2009 as having anything at all to do with a joint enterprise involving the applicant.

The applicant noted that the applicant’s former solicitor, (Sundip Ghedia (Ghedia)), was called by the Crown and testified, by reference to a file note he created contemporaneously that in a conference held with Gattellari on 18 October 2010, Gattellari said that he was solicited to kill the deceased when he was present at the applicant’s new office in Leichardt.

The file note of the solicitation recorded:

Ghedia also recorded, in respect of this meeting, that Gattellari had said “Senad was there”. Kaminic testified that he did not witness the applicant solicit Gattellari.

After Ghedia had testified, Gattellari was recalled and maintained the account that the applicant did solicit him in the new offices. Gattellari had earlier asserted in his evidence that “a conversation or two would have taken place at that office at some stage, yes.”

The applicant submitted that there was no issue that the applicant did not take possession of the new offices until September 2009 and did not occupy them until after the murder.

The applicant noted that no other evidence was adduced at trial that the applicant solicited the murder except for evidence from Gattellari.

The applicant noted that Kaminic testified that Gattellari told him once, sometime in 2009, that “it looked like” the applicant wanted to “go all the way”, however, Kaminic was not witness to the applicant saying this nor was he witness to any agreement entered into by the applicant to commit either of the offences. The applicant submitted that Kaminic “assumed” this conversation was a reference to the murder of the deceased which by this time had been raised by the Safetlis and discussed as between them and Gattellari.

The applicant noted that Gattellari denied that the Safetlis conceived the plot to kill the deceased, but accepted that Bassam Safetli had said on an unspecified date:

The applicant noted that at this time, according to Gattellari, the “McGurk matter hadn't even come up” (T1036).

The applicant noted that Gattellari confirmed that he understood “the final job” was a reference to having someone killed but he could not remember when it took place other than it being before such time as he was solicited by the applicant. The applicant submitted that the reference to murder came about in circumstances where Gattellari had been talking to the Safetlis about a job they had just done. The applicant noted that Gattellari said that their indication of the preparedness to kill “no one in particular", did not “concern him” (T1040).

The applicant submitted that against that background, Kaminic’s evidence raised a doubt as to the applicant having set in train the events that gave rise to the deceased’s death. The applicant submitted that the Safetlis’ preparedness to murder, and the failure of the Crown to call either of them, was particularly significant given that it was the prosecution case that only the applicant had a motive to kill the deceased.

The Crown joined issue with the applicant on the solicitation to murder.

The Crown noted that the applicant relied upon alleged inconsistencies in the evidence of Gattellari, or between his account and those of other witnesses (in particular Kaminic) on a number of topics including the timing and location of the solicitation. In particular, the Crown noted that the applicant placed reliance upon a submission that Kaminic provided “no support” for Gattellari on critical aspects of his account regarding the applicant’s involvement in the two offences.

The Crown also noted that the applicant’s submissions in relation to the unreasonable verdict in respect of the murder also turned significantly on a contention that Haissam Safetli had his own motive to kill the deceased (AWS [74], [179(i)]). The Crown noted that on this issue the applicant submitted that Kaminic’s evidence raised a doubt as to the applicant having set in train the events that gave rise to the murder on the basis that Kaminic’s evidence gave rise to the reasonable possibility of a “Safetli plot” to kill the deceased (AWS [73], [179(i)]).

The Crown noted that while repeatedly complaining of the its failure to call either of the Safetli brothers, the applicant had acknowledged at [AWS 318] that the Crown had “no obligation to call Haissam Safetli”. The Crown noted that a direction in accordance with Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27] was given to the jury.

The Crown noted that at AWS [60]-[67] the applicant alleged that Gattellari’s evidence about the time and place when he was first requested by the applicant to organise the murder of McGurk was inconsistent. The Crown also noted that the applicant submitted that there was a possibility that the solicitation had occurred in July 2009, which would cast doubt on whether the events said to have occurred in February 2009 and June 2009 had anything to do with a single joint enterprise involving the applicant.

In answer the Crown relied upon the following evidence of Gattellari about the initial request to murder the deceased:

As to the timing, Gattellari said as follows:

The Crown submitted that contrary to AWS [61], Gattellari did not give inconsistent evidence on this topic. The Crown submitted that the evidence of Gattellari as set out clearly demonstrated that his evidence in relation to any link between a car accident that the applicant believed was deliberate and the timing of the solicitation was heavily qualified. The Crown noted that Gattellari’s evidence included reference to the fact that it could have been “something else” and that he was “not sure”. He could not “remember the timeline of everything that took place”.

In relation to the alleged inconsistency in Gattellari's account concerning the location of the solicitation, the Crown relied upon the evidence of Gattellari that he would spend most of his time at the applicant’s office in Leichhardt (T231) of which there were two, one opening when the other closed down. The first one was in Norton Plaza (T906), and the second was further down Norton Street. The Crown noted that Gattellari said that he did not know the year or date of the move and that in the new office, he shared an office with the applicant and occasionally Andrew Howard would work there (T907).

The Crown noted that in cross-examination, when asked about the “new office”, Gattellari's evidence showed that he held a mistaken recollection as to the period of time in which the applicant occupied the “new office” in Leichhardt (compared with the evidence which showed that the applicant leased the new office on 1 September 2009). In support, the Crown relied upon:

Later Gattellari was asked:

In relation to Ghedia’s note, apparently taken on 18 October 2010, being inconsistent with Gattellari's evidence, the Crown noted that the applicant had not set out in full all of the note which was in evidence. The whole note was (although the reading of it was broken up) as follows:

The Crown noted that Gattellari was recalled for further cross-examination on the note. He said that he had no recollection of the meeting. The cross-examination concluded with the suggestion being put to Gattellari that the new office was not available for business until September 2010 to which he responded “I wouldn't argue with that, but I don't know what you are talking about” (T2396.2). Senior Counsel for the applicant suggested “That at no time did Mr Medich ever request you to kill Mr McGurk or harm Mr McGurk in any way in the new office at Leichhardt?” To which he answered “That is not correct” (T2403).

The Crown submitted that while it was open to the applicant to point to the mistake in Gattellari's version (in placing the initial conversation in the “new” Leichhardt office) as relevant to his reliability, those features were not of crucial importance to accepting the fundamental aspect of his evidence: that such a conversation occurred and it was the applicant who instigated the murder. As was submitted by the Crown, there were no doubt many conversations about the deceased in both offices in 2009 and in the new office in 2010, and the applicant and Gattellari had been using the new office for over a year by the time of Gattellari’s conversation with Ghedia following his arrest.

The Crown submitted that it was clear from the evidence that Gattellari’s level of certainty as to the timing and location of the initial conversation soliciting the murder was clearly qualified, and neither was of importance to the context of the conversation. The Crown submitted that Gattellari’s broad estimate that the conversation occurred “three to six months” before the murder was consistent with Mr Ghedia’s note “six months before incident” and with Kaminic’s evidence of the conversation occurring in March 2009 (T1222; T1226; T1320).

The Crown submitted that Kaminic’s evidence also confirmed that the initial conversation between the applicant and Gattellari about the murder had occurred in the office at Leichhardt (T1222-1223). There was no distinction in his evidence between the “old” and “new” Leichhardt office. Given the lack of challenge to that evidence, it can be readily concluded that he was referring to the “old” office.

The Crown submitted that in those circumstances, the incorrect nomination of the location by Gattellari as the “new” office in Leichhardt as opposed to the “old” office at Leichhardt did not undermine the reliability of his evidence.

The Crown submitted that the significance placed on the timing of the solicitation in the applicant’s submissions was directed at supporting the contention that a plan to murder the deceased had arisen at an earlier point in time, emanating either from the Safetlis or Gattellari independently of the applicant (see AWS [62]).

The Crown submitted that at AWS [69]-[74], the applicant was attempting to create a “Safetli plot” based on selective parts of the evidence, removed from its proper context. The Crown submitted that properly analysed, the evidence of Kaminic did not offer any support to the existence of a “Safetli plot” independent of Gattellari’s request. The fact that there was no dispute at trial that Gattellari paid Safetli for carrying out the murder, confirmed this.

The Crown noted that the background to the relationship between the Safetlis, Gattellari and Kaminic was that Gattellari had been introduced to Bassam Safetli by Kaminic when they visited one of the factories in Chipping Norton and he undertook some delivery work because he had a light truck (T344). Later Gattellari met his brother, Haissam Safetli. They later started collecting debts on behalf of the electrical companies and the applicant. There was said to have been three or four jobs towards the end of 2008 to early 2009 (T345).

The Crown submitted that it was in the context of this work that Gattellari recalled a conversation after one of the jobs where Bassam said “In the future, if you ever need anything heavier or you want the final job done, we would be happy to do it” (T347.40). Gattellari could not recall whether the Safetlis were debt collecting for him at that time, but the conversation came up after they had delivered someone a message (T1037). According to Gattellari, this statement was “out of the blue” (T348, 1036) and it did not relate to the deceased because he had not come up yet (T1038).

The Crown noted that the applicant’s contentions with respect to the “Safetli conversation” concerning the photograph of the deceased in the newspaper had already been addressed in relation to Ground 4.

The Crown noted that when the Safetli conversation (involving Haissam Safetli saying ‘you've got a problem with this fellow. You need to kill him”) was put to Gattellari, he said that he did not recall such a conversation and that he had not seen the photograph before (T601). However, he agreed that it was “quite possible” that the Safetlis and Kaminic came to his home in early February 2009. He did not think the conversation involving Safetli asking “If you ever need any heavy sort of work, we will be able to carry it out” took place then and disagreed that the Safetlis were asked to undertake surveillance at that meeting (T609).

The Crown submitted that as set out above, Gattellari's version was that after the applicant requested him to arrange the murder, he discussed the matter with Kaminic and they then determined to approach the Safetlis to see if they were interested. It was only after the first payment was made that the Safetlis were told who it was and commenced surveillance.

Kaminic’s evidence was consistent with Gattellari’s as to him having introduced the Safetlis to Gattellari in about 2008 when the electrical business had started (T1208). It was also consistent with being told by Gattellari that the applicant wanted to “go all the way” (to have the deceased murdered) while they were in the car after Gattellari had been speaking privately with the applicant in the Leichhardt office. They then approached the Safetlis (T1222-1223) who met with them at Gattellari's house, indicated they were interested and later returned with their terms. These were the payment of an initial $50,000 with $250,000 on completion, which Gattellari had to check with the applicant before proceeding (T1224-1225).

The Crown submitted that the difference between Kaminic and Gattellari was (as set out in relation to Ground 4) Kaminic’s evidence that a form of surveillance was instigated at the time of the court mention on 3 or 6 February 2009 when Kaminic was asked to ring Bassam Safetli in relation to whether the deceased was coming to court (T1217). Although the request came via Gattellari, Kaminic gave evidence that the applicant mentioned the deceased and that the applicant “was mostly concerned whether he will show up or not” and that “he didn't know and he was approximately nervous” (T1216).

According to Kaminic, some time after this there was a meeting at Gattellari’s home with the Safetlis. Kaminic’s evidence was that the request from Gattellari at that stage was only “to follow [the deceased] and to know when he's moving around”, to get photos, and “that he would notify [the applicant] to let him know about his movements”. The Crown submitted that it was in this context that, according to Kaminic, Safetli arrived carrying the newspaper and referred to the need to kill the deceased, and to which Gattellari reacted with surprise.

The Crown noted that later in his evidence, at T1251, Kaminic was asked what Gattellari told him about the reason for the surveillance and he answered:

It was on the basis of that material that the Crown submitted that while there was a difference between the evidence of Kaminic and Gattellari as to whether there had been an earlier engagement of the Safetlis to conduct surveillance of the deceased prior to and not connected with any agreement to murder, there was no question that the Safetlis’ activities at this time, being February 2009 as described by Kaminic, were at the instigation of Gattellari and on behalf of the applicant.

The Crown submitted that properly analysed, the evidence of Kaminic did not offer any support for the existence of a “Safetli plot” independent of the applicant or Gattellari’s request.

The Crown noted that Kaminic gave evidence of a conversation that took place in front of Westfield at Liverpool, about a month to a month and a half before the murder, during which Safetli commented that he would do the job for free (T1326, 1330). On the basis of that material, the applicant submitted that there was a reasonable possibility that “Safetli’s intent to murder the deceased crystallised a month or so before September 2009” (AWS [147(x)] and [179(xi)]).

The Crown submitted that the evidence of Kaminic was that Safetli was behaving differently at this time and Gattellari asked Safetli to stop everything, but Safetli said that he needed the job and if necessary he would do it free of charge (T1330). The conversation in its context indicated that it was a discussion about carrying out the criminal enterprise that was already in existence at that point. The effect of Kaminic’s evidence was that Safetli was willing to do it for free at that particular “moment” (T1330.40). Kaminic clarified that Safetli had already been paid a deposit.

The Crown submitted that that evidence reflected a determination on the part of Safetli to complete the enterprise, for which he had been partly paid, but offers no support for the contention that he had an independent motive for carrying out the murder as maintained by the applicant.

The Crown submitted that contrary to the applicant’s submissions at AWS [34], there was no evidence at trial of “likely unresolved problems between” Gattellari and the deceased in 2009, or even in 2008. The Crown submitted that the applicant’s submission is based on Kaminic’s evidence.

The Crown further submitted that properly understood, Kaminic's evidence of one visit with Gattellari to the deceased’s office was the same occasion described by Gattellari when he asked the deceased to stay out of his business. It was treated that way by senior counsel for the applicant when he cross-examined Kaminic. Kaminic was unsure of the precise date, agreeing it could have been November/December 2008. However, there was independent evidence which dated that visit as 13 May 2008.

The Crown noted that there was no other evidence of any subsequent dealings between Gattellari and the deceased.

The background to the applicant’s submission in relation to payments emerges from the following material.

When Gattellari was cross-examined about the first cash payment, he could not identify in what month the money was provided. Gattellari claimed that Kaminic was present at the time of this payment and the two men had travelled together to the applicant’s home where he and Kaminic went to the ground level and the applicant said “I will go get the dosh for you”. The two men drove back to Gattellari’s home inn Chipping Norton where Gattellari took out $45,000 cash and provided it to Kaminic.

Gattellari was cross-examined in relation to his different accounts at each trial concerning how the money was given to him by the applicant. At the first trial, his account was consistent with Kaminic having been in the position to have seen the cash, but at the second trial Gattellari maintained that the money could not be seen. Both accounts were consistent with Kaminic being present.

Gattellari was cross-examined as to his inconsistent account provided at committal proceedings where he asserted that the applicant gave him the two cash payments at his (the applicant’s) office. Gattellari accepted that this evidence as to the office was wrong and that he had made “a mistake”.

The applicant submitted that no support was forthcoming from Kaminic in relation to any of Gattellari’s accounts on this topic; not as to Kaminic’s presence at the applicant’s house with Gattellari when anything of the sort was said or done by the applicant, nor the provision of cash by the applicant to Gattellari.

According to Gattellari, out of the $250,000 in cash, $45,000 was provided to Kaminic on the understanding it was to be provided to Haissam Safetli and “the rest of the money went back … I injected the money back into the companies”. However, Kaminic claimed not to have given either of the Safetlis $45,000. Kaminic recalled Gattellari giving the Safetlis a bag which Gattellari claimed contained $50,000.

Kaminic understood that this was for surveillance of the deceased. Other evidence established that the applicant had not asked for the deceased to be surveilled.

The applicant submitted that later Gattellari gave another inconsistent account about the $45,000 and said in cross-examination that he did not pass on to Kaminic any of the funds originally received for the murder:

In any event, Gattellari maintained that he kept the rest of the first instalment of cash which the applicant gave him in his safe “for a short time”:

The applicant submitted that given that it was Gattellari’s account that something in the order of $450,000 of the cash provided to him by the applicant was “put back into” the electrical companies, it is to be noted that the Crown adduced no financial records supporting any monies having been dealt with in this way.

The applicant noted that Gattellari claimed that at unidentified times this cash currency was given to Halena Kmita, who was the company secretary, at times to Shipley “and at times I used it for payments for the companies myself.”

The applicant noted that Gattellari had “no idea” of how much of the enterprise money he gave Halena Kmita or Shipley, nor when he gave them the money. He did not tell the applicant where the money went.

The applicant noted that Halena Kmita was not called by the Crown and Shipley’s evidence did not provide support for Gattellari on these issues despite the way in which the Crown addressed the jury. The applicant submitted that this impugned aspect of the Crown address gave rise to appeal Ground 3.

The applicant submitted that the unexplained failure of the Crown to call Halena Kmita materially contributed to the raising of a reasonable doubt concerning that critical feature of the Crown case which concerned the accused supposedly funding the offences with large amounts of cash.

The applicant submitted that while Gattellari’s evidence raised the possibility that some of the enterprise money went to paying for company outlays rather than being deposited into various company accounts, his was the only evidence as to this explanation for the monies and that no financial records were relied upon by the Crown in support. The applicant noted that not a single such transaction was nominated by Gattellari. This was in circumstances where by such time as the applicant’s trial commenced, the liquidator of various of the electrical companies, O’Brien Palmer, was known to the prosecution and a copy of a letter to creditors dated 8 December 2011 from Bryan Collis had been served by the defence during the first trial and again at the request of the Crown, during the second trial.

The applicant noted that Gattellari maintained that the second cash payment was made in the same way as the first and amounted to $250,000 cash and Kaminic was present on this occasion as well. He could not identify in what month the money was provided.

The applicant noted that on the evidence of Gattellari, this cash was not used to pay anyone for the enterprise and rather was “distributed to a number of the companies”, “distributed between different companies and used for whatever it was required for.” Following on from this answer defence counsel asked, “Well to whom?” Gattellari responded:

The applicant noted that there was further evidence from Gattellari which directly contradicted this aspect of his account when in re-examination he said that he did not believe that he gave Halena Kmita any of the cash for the murder for use in the companies.

Gattellari said that he did not himself bank the enterprise monies given to him from the applicant.

The applicant noted that there was no evidence adduced by the Crown capable of proving Gattellari’s account of how he dealt with this second provision of cash. Gattellari testified by reference to this second payment that the money remained in his safe at home for a “short time and, once again, as nothing was happening, I distributed it through the companies into what it was needed for.”

The applicant submitted that in this context, the Crown adduced no evidence of the circumstances attaching to the delay but adduced evidence from Gattellari that he complained to his friend Ron Mason (Mason) that:

The applicant submitted that Gattellari’s testimony in respect of the approach to Mason and the meeting with Landini was not supported on critical aspects by the evidence of Mason or Kaminic.

The applicant noted that Mason testified that about six months before the deceased was murdered he approached Gattellari for money and Gattellari in turn asked if Mason “knew any aboriginal people who could bump off someone that was costing Ron $100,000 a week.” Mason did not testify that he was told by Gattellari that there was any delay arising from the failure of others to execute a plan to have this person killed. Mason felt threatened by Gattellari and organised a meeting with his son in law Danny Landini. Mason was not at the meeting, however, he understood that two persons attended and Landini was offered $50,000 to do the job. Landini reported to Mason that these persons were imbeciles and Gattellari continued to pressure Mason about getting somebody to carry out the murder.

The applicant noted contrary to the evidence of Mason, Gattellari claimed that Landini wanted $200,000 up front and he decided to forget about him.

Kaminic testified that he did not meet with Landini and gave no evidence of conveying any information about the meeting to Gattellari from Safetli. Again, this was contrary to Gattellari's account.

The applicant submitted that no financial records were adduced at trial to establish that the applicant had access to $500,000 in cash at any relevant time in 2009. The applicant noted that it was the Crown case that the likely source of the applicant’s cash was Les Samba, a horse racing associate of the applicant. This submission was derived from Gattellari’s evidence in chief:

The applicant submitted that according to Gattellari, he did not assert that he received the enterprise money from Les Samba, however, Gattellari testified that “Ron told me that that’s where he gets his money from, but I never seen it happen”. The Crown adduced no evidence that Samba had access to this kind of cash. Samba died before the applicant’s first trial.

The applicant noted that according to Gattellari, $45,000 in cash was passed to the Safetlis, either by himself or by Kaminic, in pursuit of the enterprise before the murder and at an unspecified time.

A ledger in Gattellari’s handwriting purporting to be a record of the initial payment to the Safetlis was tendered by the defence (Exhibit 6) and it recorded two things in a 2009 diary namely; at the end of a page headed “Planning 2009 July, August, September”, Gattellari had written:

In cross-examination, Gattellari said that this document “must be” a reference to the first payment to the Safetlis in respect of the joint enterprise.

The applicant submitted that if this diary entry was a ledger of some kind recording payments to the Safetlis, it did not record a payment of $45,000 as contended for by Gattellari, but rather two amounts inconsistent with his account; each of which was improbable if the source of the money was cash currency provided by the applicant. If the Safetlis had requested $50,000 up front there was no reason not to have given them this amount out of the $500,000 in cash.

The applicant submitted that confronted with the inconsistency, Gattellari claimed that he must have merely been told by Kaminic that Safetli “only got 39”. This answer was inexplicable in light of that evidence from Gattellari that it was not Kaminic who gave the Safetlis this money. In this respect, the evidence was:

The applicant submitted that the ledger was not consistent with Gattellari's recollection that he had retrieved the money to pay the Safetlis himself:

The applicant submitted that while the Crown adduced no evidence from the Safetlis that they were paid any monies at this time by Gattellari, the defence established a likely source of the funds recorded in Gattellari’s ledger namely his own company Riv Developments (RivDev) (and not cash currency out of the enterprise money provided by the applicant).

The applicant noted that Gattellari claimed that he learned of the deceased’s murder when it was broadcast on the television news. The next morning, he said to Kaminic “Fuck, I think they've done it”. Gattellari gave evidence that he and Kaminic drove to Leichhardt on the morning and once there:

The applicant noted that Kaminic did not give evidence of the pair going to the applicant’s office that morning or of any conversation of the kind alleged by Gattellari. Kaminic could recall instead of going to Gattellari’s house where he gave Kaminic a gun to hide, which Kaminic then hid at his sister’s house and then the two men went directly to lunch at Tuscany with others including the applicant.

The applicant submitted that contrary to Gattellari's account of arriving at Leichhardt with Kaminic and meeting with the applicant in his office, Howard gave unchallenged evidence that he and the applicant drove to Leichhardt together the day after the deceased was murdered and were the first to arrive at lunch at Tuscany restaurant. Some time later, the applicant’s daughter, Gattellari and Kaminic arrived at the table.

The applicant noted that Gattellari gave evidence that he could not remember how much money had been paid to the Safetlis by the time the deceased was murdered.

Gattellari acquiesced to the proposition that $300,000 was paid to the Safetlis for the murder and this was in addition to the original $45,000 for expenses and $5,000 for the Jindabyne snow trip. He agreed that the final payment was constituted by the provision of a motor car (a Honda Jazz), the value of which was $7,000 or $8,000. In total $450,000 or $460,000 was passed to Kaminic for both offences and this included $100,000 in cash provided by the applicant on 30 July 2010 for the intimidation. All of these monies Gattellari understood were passed on to the Safetlis.

When asked when the cash for the murder was withdrawn from the electrical companies, Gattellari said “It was over a long period of time ... some in January, some in February, some in different months. The last payment to Safetli was the Honda Jazz. As to when this last payment was made Gattellari gave evidence that a telephone intercept of 6 February 2010 established that by this time the only outstanding amount was $5,000, and this was then paid by the provision of the Honda. Accordingly, the applicant submitted that the inference to be derived from Gattellari was that these monies were paid out between January and 6 February 2010, yet not a single withdrawal from the company accounts was identified as constituting any such payment.

The applicant noted that Gattellari said that in respect of these payments “it's all written down.” Such a record was not produced by the Crown and Gattellari suggested that the police had lost or tampered with it. Gattellari testified to the existence of a sheet that detailed the dates and payments made to the Safetlis which he thought was in his diary. In examination in chief Gattellari said that a “portion of that record was shown to me after my arrest” but he could not explain at that time what had happened to the balance of the record. The Crown Prosecutor showed him a document (MFI 10) and Gattellari said that this was not the document. In cross-examination, he stated that he had “no idea what happened to it”. According to Gattellari, police must have misplaced “a full page of payments made to the Safetlis” and “cut it” in some way.

Officer Blanche, one of the police officers who executed a search warrant at Gattellari's home on 7 September 2009, gave evidence that Gattellari's 2009 diary was seized and not tampered with in any way.

The applicant noted that notwithstanding that this was a retrial and Gattellari made critical allegations of police incompetence, (or worse), no financial records were adduced to corroborate his account that payments for the murder came out of the accounts of the electrical companies.

The Crown addressed the jury on the basis that the cash currency provided by the applicant had been “poured into the companies” and Gattellari was able to withdraw “cash to pay the Safetlis without causing any problems” and, “what we do know is that the Safetlis were given payments after the murder”.

Despite this statement, not a single cash withdrawal or series of withdrawals from the company accounts after the murder was identified by the Crown for this purpose.

The applicant noted that Kaminic gave evidence that after the murder on “about five or six occasions over about a month” he passed on money which was always in a bag or an envelope which he did not count. Kaminic denied passing on cash in the amount of $300,000 and claimed that the maximum was “I think about 150,000”. The applicant inferred that this figure involved an assumption in light of Kaminic’s evidence.

The applicant submitted that the facts attaching to his alleged solicitation and provision of the enterprise money were critical to the Crown case yet neither was proved by admissible evidence.

The applicant noted that Gattellari claimed that he provided benefits to Haissam Safetli after the murder including a $40,000 loan to help him “save his farm” and assisting him and his brother with the use of one of the company factories for a business they were starting. Gattellari accepted that the applicant did not authorise the $40,000 loan.

The applicant noted that on 20 September and 2 October 2010, after such time as Safetli began assisting the investigation, Gattellari gave him $10,000 in cash on two occasions. Gattellari admitted that he was helping Safetli with his legal fees and that the source of the first payment was a cheque from Jerry Gordon, who had nothing at all to do with the electrical companies. The second $10,000 Gattellari accepted may have come out of his own company, Riv Developments. It was the applicant’s position that the Crown did not prove that Safetli was assisted at this time by monies derived from him (the applicant).

The applicant noted that Detective Senior Constable Blanche was cross examined in respect of what Haissam Safetli conveyed to him about monies given to him by Gattellari at this time and Safetli disclosed that in addition to the $20,000 in cash Gattellari had also given him a fake Bulgari brand watch.

The applicant submitted that the fact that Gattellari was paying off Safetli with a low-value Honda, monies loaned but unauthorised by him, an imitation watch and cash from his own company account did not dispel the doubt which was otherwise raised on the evidence as to the applicant being the financier of the offences.

The applicant submitted that no objective evidence was adduced that was capable of implicating the applicant in the provision of cash currency for the murder nor the payments made to the Safetlis either before or after the murder.

The Crown submitted that at AWS [75]-[99], the applicant relied upon alleged inconsistencies in Gattellari's evidence of cash payments provided by the applicant to establish that such payments were not made by him (the applicant). The applicant submitted that Kaminic’s evidence provided no support for Gattellari on this topic. In further support of this proposition, the applicant relied upon the submissions made by him in support of Ground 3, i.e. the Crown did not adduce financial records supporting Gattellari's evidence that he used the enterprise money initially for the purposes of the electrical companies. In response the Crown also relied upon the submissions which it made in respect of Ground 3.

The Crown relied upon the following additional submissions. The Crown noted that there was uncontested evidence that the business practices concerning the electrical companies were ad hoc and informal and reflected poor financial management.

The Crown submitted that the following bodies of evidence provided a realistic perspective against which to assess Gattellari’s evidence that he used the “enterprise money” advanced by the applicant initially for the companies’ purposes and later withdrawing monies from the companies’ accounts to pay Safetli. The evidence relied upon by the Crown was as follows:

The Crown noted that there was other evidence of lax business practices by the applicant. By way of example, the Crown noted the applicant’s investment, at Gattellari's suggestion, of several hundred thousand dollars in an Aboriginal land deal venture and of just under $1 million in the Boomerang Funeral Fund in 2007 which were undocumented. The applicant also advanced $300,000 to Gattellari for the expansion of the Eling Forest Winery in the 1990s, without any loan agreement or request for repayment by the applicant.

The Crown submitted that in light of those matters, Gattellari’s evidence in relation to the use of the enterprise money for the benefit of the electrical companies and his later withdrawal of cash from the companies’ accounts to pay Safetli was open to be accepted.

The Crown submitted that insofar as the applicant’s submissions relied upon differences between the evidence of Gattellari and Kaminic with respect to the payment of money by the applicant, properly analysed, the differences between Gattellari and Kaminic on this subject were:

The Crown submitted that contrary to AWS [78] and [144], Kaminic’s evidence provided considerable support for Gattellari’s account because the two were consistent in that an initial amount or deposit was paid to Safetli shortly after the request to murder had been made by the applicant and the amount paid was similar ($45,000/$50,000).

The Crown submitted that Gattellari’s evidence that the Safetlis quoted $300,000 to do the murder, plus some cash upfront for surveillance and expenses was consistent with Kaminic who gave evidence that Safetli quoted “$50,000 upfront, $250,000 after finishing the job”.

The Crown submitted that Kaminic’s evidence was also generally consistent with Gattellari’s evidence that the funds for the murder and intimidation came from the applicant. The Crown submitted it was clear that it was Gattellari who was dealing directly with the applicant in relation to making the relevant arrangements in respect of the money. Kaminic’s misunderstanding of the purpose of certain collections or inaccurate recollection in that respect may be explained by his subordinate participation to Gattellari. As a result the Crown submitted that Kaminic’s evidence did not to any significant extent undermine Gattellari’s evidence about the payments having been received from the applicant. The Crown submitted that Kaminic’s evidence supported Gattellari's account in multiple other ways summarised below.

In relation to specific instances, the evidence relating to money cannot be looked at in isolation. It needs to be looked at in circumstances where Kaminic has confirmed as per Gattellari’s evidence that it was following a private meeting between the applicant and Gattellari at the Leichhardt office that Gattellari told him immediately afterwards in the car that it seemed “Ron wants to go all the way” and that is what led to the meeting with the Safetlis. It is consistent with contacting the Safetlis at the behest of the applicant. It is in this context that the payments of money need to be considered. Both Gattellari and Kaminic gave evidence of contacting the Safetlis and having a meeting with them where they were all present.

Gattellari’s evidence was that he asked whether they were prepared to do the final job (AB 1488). Kaminic described something similar, i.e. asking whether they still wanted to go all the way. They both gave evidence of what the terms were that were subsequently conveyed. Gattellari said $300,000 plus upfront cash payments and expenses (AB 1489). Kaminic said $50,000 up front and $250,000 after finishing the job.

Both Gattellari and Kaminic gave evidence that the price had to be checked with the applicant. Gattellari described reporting back to the applicant, as has already been outlined. Once there was confirmation from the applicant, both Gattellari and Kaminic had the Safetlis being engaged to do the job. Both Gattellari and Kaminic had the applicant as the financier. Gattellari’s evidence was that there were two separate visits to the applicant’s home where he collected $250,000 on each occasion. He nominated Kaminic as being present when this occurred, however, his evidence was that there was no conversation in Kaminic’s presence between Gattellari and the applicant about what the money was exactly for. The money was enclosed in a bag and not visible from the outside.

The Crown accepted that Kaminic did not give evidence supporting those two specific visits to the applicant’s home. The Crown submitted that he did give evidence generally that he had been to the applicant’s house with Gattellari and a couple of times he went inside and a couple of times he waited outside. He gave evidence that he had gone to the house with Gattellari to pick up cheques and on other occasions some cash (AB 2367).

Gattellari and Kaminic both described additional payments being made to the Safetlis in order for them to go to Jindabyne. Both Gattellari and Kaminic describe a meeting before the murder outside Milano’s restaurant at Lansvale where the Safetlis are handed some cash by Gattellari. Both Gattellari and Kaminic describe cash being paid on numerous occasions after the murder to the Safetlis through Kaminic in small amounts ranging from $5,000 to $40,000. Both Gattellari and Kaminic nominate the price for the intimidation was $100,000. Kaminic’s evidence had Gattellari confirming that he was not the man to decide about that price and that he was going to need to “check with Ron” (AB 2384).

Gattellari described collecting $100,000 from the applicant at his office just over a week before the intimidation. He gave evidence of the applicant going down in the lift to the parking lot and returning with money in a bag. Kaminic was not present on this occasion because he had lost his licence. He was replaced while his licence was suspended by Mr Crockett. The Crown accepted that Crockett did not give evidence about having seen a specific bag with the $100,000 in it, but he did give general evidence that when working as a driver for Gattellari, he saw Gattellari on several occasions with large sums of cash, around $50,000 (AB 2746). He described Gattellari as carrying this bag in the back of the car. Both Gattellari and Kaminic gave evidence that the Safetlis received two instalments to do with the intimidation - $50,000 before the intimidation and then a further $50,000 after the intimidation when Gattellari and the applicant had returned from China.

The Crown accepted that Kaminic’s description of obtaining funds from the applicant, which he believed were for the murder in the form of $150,000 on the way to the airport and receiving a $250,000 cheque after the murder was not consistent with Gattellari’s evidence, however, the Crown submitted that it was clear that it was Gattellari who was dealing directly with the applicant in relation to making arrangements in respect of money for the murder and Kaminic’s misunderstanding or conflation of certain collections in this respect can be explained by the subordinate role that he was playing.

In relation to the money that Gattellari was given before the murder, he explained that he had used it for the benefit of the electrical companies. The Crown submitted that he was not saying that he deposited money into their bank accounts and he did not define with precision the means by which he applied the money for the companies’ benefit. His evidence was that he used the money in a number of ways, including by paying credit cards, making payments such as for equipment and materials and providing cash to Mr Shipley. Gattellari’s evidence also left open that he used some of the money for “other dealings” or “other matters” on behalf of the applicant.

The Crown submitted that it was not appropriate to assess just one piece of evidence in isolation. The Crown submitted that in assessing this aspect of Gattellari’s evidence, it needed to be firmly borne in mind that there was uncontested evidence that the business practices concerning the electrical companies were ad hoc, informal, largely undocumented and reflected poor financial management. These were not companies that were running according to best practice. The detail has been set out.

The applicant’s submission was that the Crown did not attempt to prove the source of the applicant’s cash (AWS [100]-[104]). In that regard, the Crown submitted that while the applicant was entitled to point to the absence of any direct evidence on the issue and ask that it be taken into account in weighing the sufficiency of proof, the source of the applicant’s cash was a matter of little significance to the trial overall. The Crown submitted that in any case, Gattellari's evidence about the possible source of funds was qualified and somewhat speculative.

The Crown submitted that there was ample unchallenged evidence that the applicant was a man of considerable wealth, with diverse business interests, that he utilised very little or no record keeping for business transactions or loans in amounts of hundreds of thousands and even millions of dollars and that he and Gattellari often dealt in cash in significant sums.

The applicant noted that after Haissam Safetli agreed to assist investigators, he participated in a number of recorded conversations with Gattellari and Kaminic in September and October 2010. The applicant assumed that the operational objective of these conversations was to obtain admissions from the parties and in particular, any material which would assist investigators in respect of the involvement of the applicant.

The applicant submitted that the conversations provided no support for Haissam Safetli having ever received any cash payment in the circumstances alleged by Gattellari for the murder or intimidation.

The listening device material in one conversation revealed Gattellari guaranteeing that he would look after Safetli financially in circumstances where there was no such thing promised by the applicant. The applicant submitted that in cross-examination Gattellari was forced to accept that he had had no contact with the applicant contrary to what was implied in those conversations. Gattellari conceded that he had no guarantee that the applicant would make any payment at all towards legal fees. The applicant submitted that this conduct on the part of Gattellari was an example of him being caught out in falsely implicating the applicant in the murder and representing as much to other members of the enterprise for his own advantage.

The applicant submitted that the listening device material also captured the assertion by Gattellari that Safetli had “nothing to do” with the applicant. The applicant noted that in response to Safetli suggesting that “Mr Big” was being protected, Gattellari said “But there’s no fuckin Big. There is no Mr Big we’re arguing about the wrong fucking thing”.

The applicant noted that Gattellari was recorded as understanding at this time that police wanted evidence in respect of the applicant. In one of the intercepts, he is heard to say “Ron’s reputation and life is in stake here” but when asked earlier by Safetli “What’s Ron got to do with it?” and later “What did he do?” there was no response from Gattellari incriminating the applicant.

The Crown submitted that the instances identified by the applicant relating to the listening device material was selective and provided a distorted view of what had been said. The Crown submitted that in order to understand the listening device material, it was necessary to place the content of the conversations in their proper context.

The Crown noted that there were six recordings tendered in evidence which occurred on: 15 September 2010 (AC2 transcript); 20 September 2010 (AD2 transcript); 2 October 2010 (AE2 transcript); 5 October 2010 (AF2 transcript); 8 October 2010 (AG2 transcript) and 13 October 2010 (AJ2 transcript). The identified participants in each recording were Haissam Safetli, Kaminic and Gattellari. The first recording occurred after both Gattellari and Safetli had been called to the NSW Crime Commission to give evidence and a substantial part of the conversation related to topics brought up by the Crime Commission.

The Crown noted that in respect of that recording, the applicant submitted (AWS [133]-[134]) that because they discussed how benefits provided to Safetli, including land and a Honda, could be innocently explained, this carried an implication that no cash payments emanated from the applicant. The Crown submitted that such reasoning should be rejected. This was because it was clear from consideration of the whole transcript that the identified topics were reactive to what had been raised in the Crime Commission.

The Crown submitted that Gattellari and Safetli were heard to discuss the topic of financial support for Safetli’s legal fees which was expected to be forthcoming from the applicant. Safetli said that he needed a “QC and Barrister” and Gattellari responded “Exactly. Ask him to give you a fucken deal and I’ll organise”. Gattellari then said:

Gattellari gave evidence that he was trying to placate Safetli while he was attempting to contact the applicant to explain to him what was happening. The applicant was interstate and Gattellari was waiting for him to return (T456).

Moreover, at the conclusion of the conversation the following exchange occurred (p15):

The Crown noted that in relation to the second recorded conversation (20 September 2010), Gattellari’s evidence was that they discussed what they had said, and should say, at the Crime Commission (T460). The Crown submitted that the conversation set out by the applicant (AWS [135]) cited the conversation but left out important words. The Crown set out the full extract is as follows (p3):

The Crown submitted that the underlined parts, omitted by the applicant in his submissions, make it clear that this was an instruction to Safetli about what he should say if interviewed again by the Crime Commission, rather than a truthful statement by Gattellari. The Crown submitted that it was an agreed fact that Safetli was paid for carrying out the murder. The Crown submitted that the applicant’s submissions based on the truth of what was said as being some how exculpatory of the applicant should be rejected (AWS [137]).

The Crown submitted that the suggestion (AWS [138]) that Gattellari was guaranteeing to look after Safetli financially independently of the applicant (with reference to the call Exhibit AG2) is entirely inconsistent with what Gattellari said in the second call (Exhibit AD2 p12):

The Crown submitted that a fair reading of the transcripts indicated that Safetli was well aware of the applicant’s involvement. In support of that proposition, the Crown relied upon:

The Crown case was that Gattellari was at this time resisting Safetli’s request to meet with the applicant. It was the Crown case that although at that point in time the applicant had begun to distance himself from Gattellari who was unable to contact him, Gattellari was still trying to protect the applicant and to get into contact with him (T489).

The Crown submitted that in the light of the extracted listening device material set out above, the applicant’s contention (at AWS [142]) that the conversations indicate Safetli was unaware of the applicant’s involvement has not been made out. It was well open to the jury to conclude that Safetli was aware of it.

The Crown submitted that the contention that Gattellari was “caught out in falsely implicating the applicant in the murder (AWS [139]), is contrary to a reading of the whole of the transcripts in their proper context, which was that Gattellari was maintaining his loyalty to the applicant hoping that the applicant would make funds available to assist him and the other participants in the enterprise. The Crown submitted that this was clear from the final recorded conversation on 13 October 2010, being the day Gattellari and Kaminic were arrested. In that conversation, Gattellari said “Because I got, I got to get out of this thing which I had nothing to fucken do with, which I’ve now been implicated. O.K. And, I, I don’t know what to do, because my whole fucken life is at stake here and Ron’s reputation and life is in stake here over things that we shouldn't have to be answering for” (Exhibit AJ2 p6). The Crown submitted that it was well open to the jury to find that Gattellari was aware that the police were closing in and was desperately maintaining his loyalty to the applicant, who, unknown to Gattellari, had now withdrawn his support and was seeking to distance himself at this late stage.

The applicant submitted that Kaminic provided no support for Gattellari on critical aspects of his account of the applicant’s involvement in the murder or the intimidation or the single joint criminal enterprise which the Crown sought to prove. The applicant noted that the Crown did not seek to challenge Kaminic in respect of these aspects of his evidence which were unfavourable to Gattellari and the Crown’s case theory.

The applicant referred to the following matters concerning the evidence of Kaminic, which emerged from the telephone intercepts and did not favour the Crown’s case theory. These matters were:

The applicant accepted that on certain specified occasions, he had asked Kaminic such things as “Any news about our friend?” “what’s up?”, and “any news?” whilst “lowering his head and leaning”. The applicant submitted that these remarks were not obviously murder related and depended upon the accuracy of Kaminic’s assumption that they were of any relevance. This was because no subsequent conversation followed as to details attaching to the arrangements for the murder. The applicant submitted that Kaminic’s assumptions and remarks, absent further conversation with the applicant, constituted enquiries about the progress of the murder were “of dubious probative value”. The applicant submitted that it was significant that the trial judge did not leave this evidence to the jury as capable of proving the fact of the applicant’s involvement and was not asked by the Crown to give a redirection to that effect.

The applicant submitted that there was no reason on the Crown case for the applicant to have spoken in some kind of code in private conversations with Kaminic and Gattellari. There was no evidence that the three men ever resolved to speak privately in code together.

The applicant submitted that it was his case that Kaminic was simply mistaken in assuming things said by him were murder related. The applicant submitted that this was a likely conclusion in circumstances where on the evidence the applicant never conversed with Kaminic about the murder, nor with Gattellari in Kaminic’s presence.

The applicant submitted that other assumptions by Kaminic relating to things that were said to have been done in pursuit of the murder were consequent upon Kaminic misapprehending the objective of the tasks assigned to him. By way of example, the applicant referred to:

The applicant submitted that what this evidence demonstrated was that Kaminic’s opinions attaching to what was meant by “a job” or “the job” were simply not probative of the single joint enterprise and Kaminic’s opinion as to what the applicant meant in various isolated and uncontextualised enquiries were similarly not probative of the applicant’s guilt.

The applicant submitted that Kaminic was a witness who assisted the investigation into the applicant and despite his exposure to relevant events did not observe the applicant’s participation in the single joint criminal enterprise.

The Crown submitted that the applicant’s assertion that Kaminic provided no support for Gattellari on critical aspects of his account of the applicant’s involvement in the murder or the intimidation or the single enterprise did not withstand scrutiny.

The Crown submitted that the Crown Prosecutor did not “improperly obscure” the differences between the evidence of Gattellari and Kaminic. On the contrary, the Crown Prosecutor addressed the jury that there “are clear differences … between Gattellari’s recollection and Kaminic’s recollection” and that these were raised in the opening. The Crown submitted that its position was that despite those differences on essential aspects, the evidence of Gattellari and Kaminic were the same.

In supporting that submission, the Crown identified certain pieces of evidence and sought to demonstrate how they supported the Crown case and the evidence of Gattellari:

The applicant noted that the Crown relied upon admissions said to have been made by him to persons other than Gattellari as providing circumstantial support for the case against him.

Kaminic testified by reference to no date that the applicant said at lunch on one occasion at Leichhardt “he told a solicitor “if I had a gun I would kill him” (T1215.10-33). The applicant submitted that this evidence was based upon an assumption by Kaminic that the comment was referable to the deceased. Kaminic said that this was said after the applicant had “just returned” from a meeting with presumably the same solicitor. The applicant further noted that the comment was disputed in the defence case. The applicant noted that the scenario of a lunch having taken place in circumstances where the applicant had come from a meeting with his solicitor was put to Kaminic as having occurred on 19 February 2009. It was also put that Andrew Howard was present. The applicant accepted that this timing was possible and said that he had previously given evidence that Andrew Howard was present at this lunch.

The applicant submitted that evidence from Andrew Howard and the applicant’s solicitor, Kevin Munro, that nothing of the kind was said by the applicant to them placed that evidence in doubt.

The applicant noted that Paul Mathieson (Mathieson) was called by the Crown. The applicant submitted that in the light of his conduct as a witness, there could be no doubt that he was motivated to damage the applicant’s interests at his trial.

The applicant noted that Mathieson gave evidence that he spoke to him on 5 February 2009 and the applicant referred to having been conned by the deceased. Mathieson gave evidence that later the same day he spoke to the deceased who claimed he was going to expose the applicant.

The applicant accepted that on 15 May 2009, Mathieson travelled to New Zealand for a meeting with Tim Alford (Alford), Andrew Howard and him. The applicant agreed that at such time as Mathieson arrived at the meeting, he (the applicant) was having breakfast and sometime later Howard and Alford arrived and the four men had lunch.

The applicant noted that Mathieson’s evidence was that in the course of the meeting, the applicant said:

Other evidence by and about Mathieson was as follows. Mathieson claimed that the applicant was extremely angry at such time as he made the remarks set out. The Crown asked Mathieson if “these comments” were said in the presence of Alford and Howard and Mathieson said:

Following the meeting, the applicant and Howard flew out of Auckland while Mathieson had drinks with Alford and flew out to Hawaii the next day.

In cross-examination and after such time as it was put to Mathieson that he had a motive to lie, Mathieson engaged in an outburst in front of the jury that the applicant had engaged people to kill him, the FBI were involved and that he was under armed guard. The trial judge later refused an application for a discharge arising from that incident.

It was accepted that before that outburst, Mathieson was cross examined to the effect that the applicant’s comments did not have the sinister complexion Mathieson placed upon them. The applicant submitted that Mathieson embellished his account and for the first time claimed the applicant said to him:

The applicant noted that the Crown advanced in final address that “… we know what he (the applicant) said was “He won't be a problem, he won’t be a problem for much longer.” Clearly you might think Paul Mathieson took that to mean he won’t be alive for much longer ... He [Mathieson] maintained that he [the applicant] said those words.”

The applicant submitted that notwithstanding the obvious difficulties with the Crown placing reliance upon Mathieson, and despite the prejudice occasioned by Mathieson’s outburst, the Crown invited the jury to accept the account proffered by him, for the first time at trial, namely that the applicant said that the deceased would not be alive for much longer. This is despite the fact that Mathieson otherwise apparently accepted that all that was said in this context was that the deceased would not be a problem for much longer.

The applicant further noted that Mathieson was challenged in cross-examination as to his previous, inconsistent account where he claimed that some of the applicant’s comments like, “I’m going to fix him, et cetera” were said in front of Alford and Howard. Howard gave evidence in the defence case that he did not arrive with Alford at breakfast and when he did arrive the applicant was alone. It was Howard’s account that Mathieson and Alford arrived later to breakfast.

The applicant noted that the Crown did not call Alford.

The applicant noted that Howard testified that while he was not with the applicant “every minute” the applicant never said the deceased “wasn’t going to be a problem for much longer” or he “won’t be a problem for much longer” or “I’ll fix him up”. Rather the applicant simply conveyed that Mathieson “did not need to worry about McGurk.”

The applicant submitted that the Mathieson evidence was of dubious probative value.

The applicant noted that Mathew Crockett was an associate of Gattellari. Crockett testified that the applicant said at a lunch outside his office in Norton St in 2010, “to everyone, really, who was at the table” that he [the applicant] should have ‘fucked Odetta off like McGurk’.” Crockett could recall Gattellari and Howard being present at this lunch. Crockett claimed that Gattellari, having heard what the applicant said, “got up then and checked around the corner”. Gattellari gave no evidence of this being said or of doing what Crockett described. Howard testified that he did not hear the applicant say anything of the sort.

The applicant noted that Kim Shipley gave evidence that after Gattellari was arrested on 13 0ctober 2010, he (Shipley) conveyed to the applicant that Gattellari was looking for a million dollars for his legal fees, to which the applicant said, “Don’t be stupid, it’s not my problem.” Shipley asked the applicant during this conversation if he was “involved” to which the applicant said:

The applicant submitted that the Crown relied upon these admissions as circumstantial support for his involvement in the single joint enterprise. It sought to prove, but adduced no evidence capable of corroborating the fact of the applicant’s involvement.

The applicant submitted that by reference to the movement of money certain steps were open to the Crown which the Crown failed to take. These were:

In response the Crown submitted that the applicant had deliberately dealt with the evidence of statements made by him derogatory of the deceased in a piecemeal way so as to reduce their persuasive effect. The Crown noted that these statements were variously dismissed as being of “dubious probative value”, not supported by Gattellari or contrary to the evidence of Howard.

It was the Crown position that the statements were probative of the applicant’s state of mind at each time. Each statement was not assessed in a vacuum but rather must be assessed in the context of the evidence as a whole. The applicant’s extreme animosity towards the deceased and his wife were independently confirmed in the recorded conversations of the applicant that occurred after the murder.

The applicant summarised his submissions in relation to Ground of Appeal 1. He submitted that the evidence established a reasonable possibility that:

The speculative nature of those propositions emerges when regard is had to the Crown’s positive case.

The applicant noted that the first reference in Gattellari’s evidence to an approach to Mrs McGurk as an objective of the single joint criminal enterprise was in response to a question from the Crown Prosecutor by reference to the applicant’s solicitation of the murder:

Gattellari responded:

The applicant noted that Gattellari could not recall when the applicant first mentioned an approach to the deceased’s wife but it was something in the order of “days or weeks” after soliciting the murder. He did not give evidence as to where this conversation took place but the applicant “mentioned that if and when we do find someone to kill Mr McGurk, he also wanted his wife paid a visit to convince her that it was time that she paid all the debts back.” (T351.1)

The applicant submitted that in response to a further question from the Crown Prosecutor Gattellari agreed with the proposition that the applicant had asked him to “visit” the deceased’s wife before he had the first meeting with the Safetlis at which their preparedness to murder the deceased was discussed (T354.22).

The applicant submitted that by this point in Gattellari’s examination in chief, he had asserted two contradictory propositions, namely that the first mention of the visit to the deceased’s wife was possibly weeks after the applicant’s solicitation (and hence on the Gattellari chronology after the Safetli meetings) and that it was before the first Safetli meeting. The applicant noted that on at least on one of Gattellari’s versions of events “the visit” to the deceased’s wife was put to the Safetlis at the very first meeting (T354.22).

The applicant submitted that the supposedly dual objective of the joint enterprise was not supported by the evidence of Kaminic who testified that the first he heard of any plan to intimidate the deceased’s wife was at the end of 2009, or at the beginning of 2010 (T1345.15).

The applicant submitted that notwithstanding the importance attaching to the “single joint enterprise” in how the Crown sought to prove its case and the significance of the unchallenged evidence of Kaminic establishing that there was no mention of any “visit” to Mrs McGurk before the murder, the Crown chose not to call either of the Safetlis at trial. The applicant submitted that speculation as to what one or other of them might have said about the veracity of any or all of these inconsistent versions gave rise to an obvious doubt.

The applicant submitted that Gattellari gave no other evidence of anything else said or done by him in pursuit of the visit to the deceased’s wife throughout 2009 until the day after the murder. The applicant submitted that the assertion that the applicant raised the visit at this time was made in response to a question from the Crown Prosecutor as to whether there was “any discussion about the proposed visit to Mrs McGurk at around the time of the media frenzy?” Gattellari responded:

The applicant submitted that the above summary comprised the evidence upon which the Crown case relied concerning the applicant’s involvement in passing on a message to the deceased’s wife throughout 2009, i.e. two conversations adduced without detail or context in response to leading questions of the prosecutor.

The applicant submitted that the existence of a plan to visit the deceased’s wife at any time in 2009 was unsupported by Kaminic in circumstances where Kaminic was according to Gattellari present at the solicitation of the Safetlis for this purpose (T352.21). The applicant noted that Kaminic could not remember the applicant asking him or Gattellari to do anything in relation to the deceased’s wife. In his examination in chief Kaminic gave evidence that he had heard mention, after the murder, of matters referable to the deceased’s wife; “they are at court” and “she's refusing to pay” and “some pressure should be put on”. The applicant submitted that no evidence was adduced as to when Kaminic heard these things but Kaminic agreed to a further question referable to what was said by the applicant about these various conversations, that the applicant was “speaking to Gattellari” at this time. When questioned as to whether the applicant explained what he meant by “some pressure should be put on her” Kaminic said: “I don't know exactly what, but she's refusing to pay and he was not happy with her, with that situation, with everything”.

The applicant noted that according to Kaminic at another point in time (and it was not clear precisely when) Gattellari asked Kaminic to “find somebody to go visit” the deceased’s wife and Kaminic approached his friend Daniel Costa. The applicant submitted that it was not clear why either of the Safetlis were not approached if the plan was that the Safetlis were engaged to both intimidate and murder and they had been paid to do so.

The applicant noted that Costa gave evidence that he was first approached by Kaminic for this purpose on 6 February 2010, a date ascertained from his telephone records. The applicant submitted that there was no evidence of a conversation between Gattellari and the applicant in which the applicant requested an approach at this time in February 2010 namely, before such time as Gattellari claimed that the applicant re-instigated the plan after various events including after the deceased’s wife “won the appeal against that caveat and had it removed”.

The applicant noted that these unsuccessful caveat proceedings were heard and resolved on 26 May 2010. The applicant submitted that Gattellari provided no explanation of how it was that Costa came to be approached before such time as the objective factors existed which apparently underpinned the applicant's motive to re-instigate “the visit”.

The applicant noted that the Crown Prosecutor asked certain questions of Gattellari, the obvious objective of which was to ascertain if there had been any direction from the applicant re-instigating the plan to visit the deceased’s wife before the caveat proceedings, in response to which Gattellari said he had not spoken with the applicant about the plan “in any direct manner. We mentioned it a couple times, I suppose”.

The applicant submitted that after giving the skeletal evidence summarised above in respect of the applicant’s solicitation of “the message”, Gattellari was then played various telephone intercepts by the Crown Prosecutor and he provided a commentary as to how these calls were to be understood as supportive of the applicant’s knowledge and participation in the intimidation. The applicant submitted that by the time these recorded conversations were played to the jury, Gattellari could only recall one specific conversation in 2010 in which the applicant requested that a message be delivered to the deceased wife.

The Crown submitted that Gattellari did not give contradictory evidence on the timing of the request by the applicant to approach the deceased’s wife. Gattellari’s evidence as to the timing of the applicant’s initial request for Mrs McGurk to be paid a visit was that it was “days or weeks” after the applicant’s initial solicitation of the murder (T351.1). The Crown noted that the applicant said that if and when someone was found to kill the deceased, the applicant also wanted his wife “paid a visit to convince her that it was time that she paid all the debts back” (T351).

The Crown noted that Gattellari’s evidence about the solicitation of the murder had been dealt with above. The Crown submitted that there was an initial conversation when the request to murder was made and then a second conversation with Gattellari when the request was confirmed. When asked how soon after the first conversation that second conversation occurred, Gattellari answered “I don’t know the exact timeline, but it might have been two or three days later” (T350.21).

The Crown noted that Gattellari’s evidence was that the timing of the initial meeting with the Safetlis to discuss the murder, which was arranged by Kaminic, was “maybe a week or so, a few days after that second discussion with Mr Medich in his office” (T352.1).

Gattellari clarified that the applicant had raised the matter of the intimidation of Mrs McGurk before he had the initial meeting with the Safetlis to ask them if they were prepared to carry out the murder (T354.22). Gattellari said that he told the Safetlis at their first meeting “that apart from the murder, there was a second phase to be carried out, that the guy who wanted this done also wants the man’s wife intimidated to pay back certain moneys that were loaned” (T354).

The Crown submitted that the applicant’s argument (AWS [184]) appeared to be that the reference to “days or weeks” meant “possibly weeks” and that “possibly weeks” was “contradictory” to the description of the first Safetli meeting occurring “maybe a week or so, a few days” after that second conversation. The Crown submitted that that argument should be rejected. The Crown submitted that while Gattellari's description of the timing of each conversation was not precise, it was qualified and there was no inconsistency between “days or weeks” and “maybe a week or so, a few days”.

The Crown submitted that at no point did Gattellari give evidence that the first Safetli meeting took place before the applicant had raised with him the “visit” to Mrs McGurk. The Crown submitted that the transcript references relied upon by the applicant in his submissions did not support the assumption (AWS [184]) that Gattellari gave a version involving the first Safetli meeting occurring before the applicant first mentioned the visit to Mrs McGurk.

In assessing the evidence of Kaminic, it is important to bear in mind that the genesis of the joint criminal enterprise which was at the heart of the Crown case was between the applicant and Gattellari and which expanded to include others as already explained in Ground 7.

The Crown submitted that Kaminic’s role, while significant, was not central and it was clear from the evidence of both Kaminic and Gattellari that while he may have been at the office generally, Kaminic was not present in the same room where the private conversations between the applicant and Gattellari were taking place. While Kaminic was far from certain about when he first became aware of the “plan” to intimidate Mrs McGurk, he ultimately said that it was “maybe couple of months” after the murder, about the end of 2009 to the beginning of 2010 (T1349.17).

The Crown submitted that the submission at AWS [186] that “the unchallenged evidence of Kaminic establish[ed] that there was no mention of any “visit” to Mrs McGurk before the murder” overstates the effect of his evidence. A lack of recollection by Kaminic of any discussion about the intimidation prior to the murder is not inconsistent with the evidence of Gattellari or the Crown case. The murder itself was the more significant enterprise and the primary objective until such time that it had been carried out. Apart from arranging the meeting with the Safetlis to discuss the murder (at which the intimidation was mentioned), Gattellari did not suggest that Kaminic was asked to do anything in relation to it (until after the murder). Kaminic’s evidence, or lack thereof, as to this period of time is not of great significance.

The Crown submitted that there was no challenge to the evidence of Gattellari that on the day following McGurk’s murder there was a “media frenzy”. His evidence that the applicant told him to hold off on the intimidation because of that interest was entirely plausible. Kaminic gave evidence that he heard the applicant say that Kimberley McGurk was refusing to pay and that some pressure should be put while also referring to her as a “bitch”. His evidence was consistent with the evidence of Gattellari, evidence of the way the applicant spoke of Mrs McGurk in the telephone intercepts (in particular Exhibit B) and the litigation history as set out in the agreed facts.

It follows that it was well open to the jury to find beyond reasonable doubt that the genesis of the “warning off” part of the joint criminal enterprise was in accordance with the evidence of Gattellari.

The applicant submitted that although Gattellari claimed that intercepts (between 31 July and 2 August 2010) were evidence of conversations between himself and Kaminic arranging for Kaminic to pay the Safetli brothers $50,000 in cash currency as a first instalment for the intimidation, Kaminic gave no evidence of providing either of the Safetlis with cash before the intimidation. Kaminic testified that he gave Safetli $50,000 after the intimidation out of which Haissam gave him $10,000.

The applicant noted that it was the Crown case that he and Gattellari had made plans to leave the country on 6 August 2010 so as to be absent at such time as “the visit” took place. The applicant accepted that the Crown had adduced evidence of police intelligence to this effect from Detective Howe.

The applicant noted that in his commentary as to the meaning of certain calls Gattellari claimed that an intercept of 4 August 2010 at 11:24am was a discussion between himself and the applicant about creating an alibi for the intimidation (which earlier calls had established was to take place between 5 and 9 August 2010).

The applicant submitted that in fact the content of the 4 August 2010 call between the applicant and Gattellari did not establish that proposition. The applicant submitted that a proper reading of what occurred indicated that Gattellari was discouraging the applicant from being out of Australia between 5 and 9 August 2010. The applicant noted that it was Gattellari’s suggestion that the pair leave the following Wednesday (11 August 2010) and return at an unspecified time.

The applicant submitted that given the significance that the Crown placed upon this 4 August 2010 call, as independent evidence of the applicant’s guilt, it was necessary to set out the relevant portion of the intercept, including what was said to constitute an assertion on the part of the applicant as to his knowledge of a prospective alibi and hence the offence:

The applicant submitted that there was no dispute at trial that the trip to China was a legitimate business activity organised by persons employed by the applicant, including Shipley and Howard. The purpose of the visit was to attend various meetings attaching to the prospective AAK takeover or merger. The evidence established that Gattellari had earlier informed the applicant (including in an intercepted call on 2 August 2010) that their leaving Australia was contingent upon meetings being lined up and organised by Andrew Howard.

The applicant submitted that in that context, his acquiescence in the 4 August call, by the assertion of “yeah”, to the self-evident proposition that the trip to China was not a holiday and needed to accommodate a schedule of events is of dubious probative value in proving the guilt of the applicant.

It was against that background that the applicant submitted that the intercepted telephone conversations, evaluated in the context of other evidence, establish the likelihood that Gattellari overheard Howard and the applicant referring to “a message” and Gattellari organised “the visit” to the deceased's wife as some kind of “favour” for the applicant with the misguided objective of trying to facilitating a resolution as between the parties. The applicant submitted that in so doing, Gattellari's motivation may have been to free up the applicant’s interest in, and potential further investment in, the struggling electrical companies. So much so is established from two intercepted calls, the relevant aspects of which the Crown did not ask Gattellari to explain in his commentary.

The first is a conversation with Andrew Howard (24 August 2010 at 11:39:14) in which Gattellari disclosed his personal interest in the settlement of matters with the deceased’s wife and in which he took to directing Howard as how to conduct himself with the applicant’s solicitors in pursuit of the same goal. An example given was that Gattellari enquired as to whether there were any negotiations for settlement with the deceased’s wife and went on to direct that the applicant’s solicitor conduct himself in a certain way:

The applicant noted that later that day, in discussions, it was Gattellari who raised Howard’s meeting with the applicant’s solicitor that same afternoon. Gattellari enquired of the applicant if he had heard from “our other friends ... from Kings Cross”, presumably a reference to the Arrun Thai lunch, and the applicant said “No”.

The applicant then relied on a number of telephone calls, the effect of which was to suggest that the only person interested in intimidating Mrs McGurk was Gattellari and that the applicant’s preference was to have matters dealt with properly by his legal team.

The detail of these intercepts was as follows:

The applicant submitted that it was apparent from this call that he was otherwise consulting with his lawyers, Kevin Munro and John Bamford, about other legal matters and did not want Gattellari and Shipley making decisions without proper consultation with his lawyers because Gattellari had a “court case going on now which is critical”. The applicant submitted that his concern that decisions were made subject to legal advice made it doubtful the applicant had days earlier commissioned Gattellari and his people to attend at the home of the deceased’s wife.

The applicant noted that when Gattellari redirected the topic of the “Bamford thing” (a reference to the applicant’s solicitor in the McGurk litigation) he said, “that Bamford thing has got to be resolved sooner rather than later and I mean right away.” The response of the applicant was:

The applicant submitted that it was evident from this part of the call that when he referred to trying to resolve the matter, he was conveying that he was doing so with others, including his lawyers, and that he had communicated his lawful intentions to Ritchie Vereker, by lawful means. It was submitted that the applicant’s assertions in this call as to his state of mind, and the mutual efforts of others, are entirely consistent with what the evidence disclosed in earlier conversations between the applicant and Howard (in August 2010) where the applicant conveyed getting the message to the deceased’s wife was one appropriately handled by mutual friends; not posing a threat but with the orthodox intention of achieving a settlement.

The applicant submitted that the intercepts demonstrated that Gattellari had his own perception of the need to resolve the McGurk matters and a certain desperation, personal to him in so doing. It was submitted that Gattellari’s desperation in late August was likely informed by his concern as to the unravelling of his own criminality in organising the intimidation, something about which the intercepted material rendered likely and of which the applicant was unaware.

The applicant submitted that the tenor of the 24 August conversation, and the absence of others, does not support Gattellari's account that the applicant was “constantly reminding me that this [the delivery of a message to Mrs McGurk] has to be done as soon as possible”.

The applicant submitted that Gattellari’s account of repeated pressure from him, including his agitation in the office and at restaurants, asking “What’s happening; when is it going to happen?” was doubtful in light of the applicant’s demeanour in these telephone calls. The applicant submitted that in contrast, Gattellari’s state of mind in these calls demonstrates that he had his own interest in the resolution of the applicant’s legal proceedings and was content to direct others in pursuit of whatever advantage was perceived as consequential to him. The applicant submitted that this was consistent with his having said at a lunch in August 2010 in the presence of Andrew Howard that “someone had done [the applicant] a favour” by reference to the intimidation and the applicant should “take the money and be done with it” (T1066.16).

The applicant submitted that there was no doubt that Gattellari’s personal income in 2010 was derived from his involvement in the electrical companies and freeing up the applicant’s focus to be upon them was advantageous to Gattellari.

The applicant submitted that Gattellari’s evidence of his participation in arrangements to intimidate the deceased’s wife was otherwise unsupported by other evidence. The applicant then set out the following propositions which, he submitted, placed Gattellari’s version of events in doubt:

Kaminic’s evidence was that Gattellari asked him to go and find someone to visit Kimberley McGurk “because they were at court and she was refusing to pay”, which he understood to be her refusal to pay the applicant in the context of their legal proceedings. Kaminic said that as a result of that request, he contacted Daniel Costa and asked him to come to Gattellari’s house. Kaminic thought this was “roughly three to four months after the murder”.

The evidence from Costa placed the meeting at Gattellari’s house on 6 February 2010 (T1567). The applicant pointed out that Gattellari did not give evidence of any specific conversation with the applicant which gave rise to this approach, however, Gattellari’s evidence was that before the receipt of the Clayton Utz bill, intimidation was mentioned by the applicant “a couple of times” (T414). Importantly, as already discussed above, the terms in which the approach was conveyed to Costa by Gattellari (as explained by Costa in evidence) supported Gattellari’s evidence that the message was to be delivered on behalf of the applicant.

Gattellari also explained in evidence that the approach was made to Costa rather than Safetli because at that stage Safetli was becoming “a little bit erratic”. The Crown submitted that the applicant’s submission (AWS [193]) overlooked that evidence.

The Crown noted that (AWS [198]), the applicant relied upon Kaminic’s lack of any precise recollection about paying the first $50,000 to the Safetlis before the intimidation as being inconsistent with Gattellari’s evidence of conversations between himself and Kaminic arranging for Kaminic to pay $50,000 as a first instalment for that offence. However, Kaminic’s evidence was that he was aware that the Safetlis were paid $50,000 before the intimidation took place.

After giving evidence that Gattellari gave him $50,000 to give to Haissam Safetli after the trip to China, which Kaminic then provided to Safetli, receiving $10,000 out of that amount back from Safetli, the Crown Prosecutor asked the following questions (T1256):

The Crown submitted that it was clear that Kaminic did not merely “testify that he gave Safetli $50,000 after the intimidation out of which Haissam gave him $10,000” as suggested (AWS [198]). The Crown submitted that Kaminic simply did not recall whether he was present for the payment of the first $50,000, but he knew that it had been paid.

The Crown submitted that a sequence of telephone intercepts supported Gattellari’s evidence about the first payment. The Crown noted that in his evidence, Gattellari identified a call between himself and Steve Julian on 30 July 2010 at 15:51pm when he referred to picking up a parcel in Leichhardt. He gave evidence that this was the money the applicant supplied for the intimidation. Gattellari also identified an earlier telephone call that same day in which he asked the applicant (30 July at 10:40am) “if you can do what we discussed” and gave evidence that this related to picking up the cash to pay for the intimidation. The following day, on 31 July 2010 at 10:10am, Kaminic was recorded telling Gattellari that he has spoken to “our friend” who cannot come on a Monday morning but can in the afternoon. Gattellari gave evidence that the “friend” was Safetli and that the purpose of the meeting was to provide the first instalment of the intimidation money, being $50,000. The rest of the money was to be given after the intimidation.

The Crown submitted that the calls were entirely consistent with the explanation provided by Gattellari of payment having been made to Safetli proximate to the intimidation.

The Crown submitted that even if there were some inconsistencies with Kaminic’s evidence on this point, in light of the above, it was of no assistance in supporting an assertion that the verdict in respect of the intimidation was unreasonable.

The Crown submitted that a particular intercepted conversation between Gattellari and the applicant, extracted at AWS [202], was said by the applicant to be of dubious probative value in proving his guilt in respect of the intimidation count. The applicant contended that this was because in one part of a call (on 4 August 2010) Gattellari suggested to the applicant that they could leave the following week (on 11 August 2010). The applicant submitted that this raised a doubt that the purpose of the trip was connected to the intimidation.

The Crown submitted that the particular extract cannot be read in isolation and must be considered in the context of the other evidence relating to the applicant’s trip to China during the period in which the intimidation offence was committed, including the sequence of interconnected telephone calls. The relevant intercepted calls have already been addressed in detail above when setting out Gattellari’s version of the events after the murder.

The Crown submitted that Gattellari was not asked any questions about the relevant trip to China. Given that Gattellari and Kaminic were in fact responsible for arranging the intimidation, which occurred on 8 August 2010, while Gattellari and the applicant were in China, the Crown submitted that there can be no doubt that the conversations related to precisely that topic. The Crown submitted that when the intercepts are read in their full context, it is clear that the applicant was under no misunderstanding about the true purpose of the trip.

The Crown submitted that the applicant’s argument in relation to the one call of 4 August 2010, is flawed and misconstrued and took the particular evidence out of context. It was not borne out by a reading of the call transcripts as a whole. Further, it incorrectly assumed that the timing of the intimidation taking place was fixed prior to the call in which Gattellari raised the possibility of leaving the following week, which clearly it was not.

The Crown submitted that the applicant's suggestion at AWS [205] that other intercepted calls “establish the likelihood that Gattellari overheard Howard and the applicant referring to a ‘message’ and Gattellari organised ‘the visit’ to the deceased’s wife as some kind of ‘favour’ for the applicant with the misguided objective of trying to facilitate a resolution between the parties” is a proposition constructed entirely for the first time for the purposes of this appeal which was never put to Gattellari at trial and is not supported by the evidence. Put at its highest, it involves nothing more than speculation.

As set out above, at AWS [205]-[217] the applicant contended that there was evidence to support an independent motive on the part of Gattellari. The supposed motive for Gattellari arranging the intimidation was said to be his desire “to free up the applicant’s interest in and potential further investment in the struggling electrical companies” (AWS [205]). The Crown submitted that notwithstanding that no such motive was put to Gattellari at trial, the applicant relied upon two intercepted calls dated 24 August 2010, after the intimidation to argue that it was established on the evidence.

The first conversation between Gattellari and Howard was on 24 August 2010 at 11:39am. This included only a brief conversation referrable to the settlement discussions. A greater part of the conversation was directed at a distribution agreement. The Crown noted that nothing said by Gattellari displayed any interest beyond that of being a close confidant of the applicant and nothing at all suggested that he held an interest beyond that of the applicant.

The Crown submitted that the applicant’s submissions at AWS [207]-[214] about the second call were inconsistent with a reading of the transcript of the telephone call. There was a brief reference to what can be inferred was the dispute with Mrs McGurk before the discussion turned to the Amazing Loans matter, including whether or not to backdate the documents transferring the shares to Gattellari. Gattellari pointed out that Shipley had misled Mathieson in asserting that the applicant was not involved at the time he had met with him so that if the documents were not backdated, that subterfuge might become apparent. The Crown submitted that this was hardly evidence of the applicant’s “concern that decisions were made subject to legal advice” (AWS [210]).

The Crown noted that the two calls, which post-date the intimidation, constitute the entire evidentiary basis upon which the applicant sought to suggest at AWS [214] that “Gattellari had his own perception of the need to resolve the McGurk matters and a certain desperation, personal to him in so doing”.

The Crown submitted that the only evidence demonstrating a desperation in resolving the litigation against Mrs McGurk emanated from the applicant. This can be seen in the intercepted calls between him and Andrew Howard in July 2010 before the intimidation and during which the applicant’s contempt towards Mrs McGurk and determination to have the matter resolved on his terms were clearly set out.

The Crown submitted that this attempt for the first time to attribute to Gattellari a motive based on what can only be described as the flimsiest of evidence can be readily dismissed. I agree. The matters relied upon by the applicant at [577] – [588] hereof are based essentially on speculation not evidence. In those circumstances, it was well open to the jury to find beyond reasonable doubt that the telephone call of 4 August 2010, in the context of the other telephone intercepts, demonstrated knowledge on the part of the applicant that the intimidation was to take place while he and Gattellari were in China.

The Crown noted that at AWS [218], the applicant contended that Gattellari’s evidence of his participation in the arrangements to intimidate the deceased’s wife was unsupported by other evidence, in particular that of Matthew Crockett. The Crown noted that the applicant submitted that Matthew Crockett “gave no evidence of seeing a bag or asking to see a bag with $100,000 cash in it, nor of an occasion when he drove Gattellari to the appellant’s office”. Gattellari’s evidence was that on 30 July 2010, Crockett drove him to the office in Leichhardt where the appellant gave him $100,000, which he later showed to Crockett.

The Crown noted that Crockett’s evidence was to the effect that throughout 2010, he drove Gattellari around and that during this time he saw Gattellari on several occasions with large sums of cash around $50,000. He said that he would carry this cash in a brown bag or a “bum bag”. The Crown submitted that this evidence of Crockett was generally supportive of Gattellari’s account.

The applicant submitted (AWS [219]) that Gattellari “changed his evidence” as to the fee ultimately paid for the single joint criminal enterprise. In response, the Crown submitted that Gattellari’s accuracy needed to be assessed in the light of what he said in re-examination. This was to the effect that he had told police (at the time of making his statement on 25 November 2011) that the figure of $600,000 included “other matters” (apart from the murder and intimidation) for “other jobs” which the applicant wanted done (T1164). In this sense, there was no real change to his evidence.

Part of the cross-examination of Gattellari, and the defence case, was directed at an issue arising out of a police investigation, (Strike Force Smedley) which was referred to in the trial as the “Smedley investigation”. The central allegation arising out of that investigation was that Gattellari had, from prison, orchestrated an approach to persons associated with the applicant with an offer to refuse to give evidence in exchange for the payment of a large sum of money. An initial approach was made through Robert McCarthy with the assistance of Gattellari’s brother and when that approach failed (due to the appearance of an undercover officer involved in the Smedley investigation) a second approach was orchestrated through a fellow prisoner, Shayne Hatfield, involving Roger Rogerson and Glen McNamara. As a result of that investigation, Gattellari (along with a number of other persons) were charged with conspiracy to defraud the applicant.

At trial, Gattellari was granted a certificate pursuant to s 128 of the Evidence Act for his answers in relation to this topic. Gattellari maintained that the approach to the applicant was with the knowledge and permission of the police involved in the murder investigation and that essentially he set out to trap the applicant into responding to the approach. Gattellari believed this would confirm the applicant’s guilt in relation to the murder charge and thereby bring the matter to a conclusion and allow Gattellari to improve his conditions in custody away from the high security environment required due to his status as a Crown witness.

Although Gattellari had disclosed to police some information about potential contact with persons connected with the applicant, it was clear that Gattellari had not been truthful to police in originally suggesting that the initial approach had come from persons connected to the applicant, when it had in fact been orchestrated by himself.

The applicant’s contention was that the evidence on the topic demonstrated that at a fundamental level, Gattellari was a dishonest witness, that he had lied about a number of police officers in relation to the Smedley investigation, that the jury would be satisfied that he was lying about other things and he was not an honest and reliable man. In response, while the Crown accepted that this was a relevant consideration when assessing Gattellari’s credibility and reliability, it was open to the jury to treat Gattellari’s actions as premised on the applicant’s guilt and not his innocence. That was particularly obvious from the explanation which had been given by Gattellari to McCarthy (about which McCarthy gave evidence at T2042) that the actions of Gattellari stemmed from bitterness that he had arranged the murder on the applicant’s behalf and the applicant had turned his back on him.

The applicant submitted that as a consequence of the contended errors at trial (Grounds 3 – 7), there had been a distortion in the evidentiary picture which undermined the significance in this appeal of any advantage the jury possessed in assessing the credibility of the critical witness. The applicant submitted that such an advantage in assessing Gattellari’s credibility could not be quarantined from the Crown’s improper submission contending that there was objective and other support for the applicant having provided hundreds of thousands of dollars in cash for the enterprise (Ground 3).

The applicant submitted that less weight was to be given to an “advantage” where the jury has been misdirected (Grounds 6 and 7).

The applicant submitted that in conducting an independent assessment of the admissible evidence, this Court having been properly instructed, had an advantage in that respect over the jury. The applicant submitted that the proper evidential picture was one that contradicted the central Crown theses about the applicant’s involvement in the critical events, i.e. the solicitation and the provision of the enterprise money.

The applicant submitted that without any corroboration, Gattellari simply was not a credible witness and the Crown case relying wholly (or even primarily) on his uncorroborated evidence was problematic to the point that it could not have satisfied a reasonable jury properly instructed of the applicant’s guilt beyond reasonable doubt.

The applicant submitted that Gattellari’s irrational and transparent efforts at the trial to defend his attempted extortion of money from the applicant, after having been sentenced for murder, provided some insight into his capacity for deceit and a peculiar tendency to shift blame to others by layers of unsupportable and at time unintelligible and irrational accusations.

The applicant submitted that given the characters involved in the offences and their violent disposition to murder, there was a reasonable possibility that these offences were the product of a constellation of unhinged minds and aberrant perceptions of advantage.

The applicant submitted that in these circumstances, and in accordance with principle, the Court would not engage upon a process of reasoning that the failure by the applicant’s senior counsel to put a motive to Gattellari in cross-examination, was a basis for drawing an inference that in fact Gattellari was not lying about the joint criminal enterprise.

The applicant submitted that there was reliable evidence adduced at trial that Gattellari had a personal interest in the resolution of the applicant’s financial disputes with the deceased’s estate. There was reliable evidence at trial that Gattellari acted upon such interest by orchestrating an approach to Costa in February 2010 in circumstances where such approach had nothing at all to do with the applicant.

The applicant submitted that there was no objective evidence in support of him having provided any cash to Gattellari for the execution of the single joint enterprise, nor for Gattellari having arranged for the Safetlis to be paid out of the accounts of the electrical companies. The applicant submitted that this was an extraordinary state of affairs given the amounts involved and the evidence available to the Crown.

Finally, the applicant submitted that the Court would entertain a reasonable doubt from the failure on the part of the Crown to adduce such evidence and call the Safetlis. The applicant submitted that this was not to speculate about what they would have said or what they would not have said. On the contrary, it proceeds upon the unresolved doubt left as real and open in the minds of a jury considering the evidence in the trial without such speculation.

Apart from responding to the applicant’s submissions directed at purported weaknesses and inconsistencies in the Crown case, the Crown put forward a strong positive case to establish the applicant’s position as the originator and financier of the single joint criminal enterprise to murder the deceased and intimidate his wife.

The start point was a brief review of matters not in dispute.

There was no doubt that the deceased was murdered at about 6:25pm on 3 September 2009. As the deceased got out of his car, he was struck by a bullet discharged from a modified firearm in Haissam Safetli’s possession. The agreed cause of death was a gunshot wound to the head. Safetli and Estephan each admitted their involvement in the murder and pleaded guilty to charges arising from it. Each had admitted in their respective sentence proceedings that they were paid money for their participation in the murder, although the amounts they were paid were not nominated in the agreed facts in the applicant’s trial (Exhibit F, para 8).

There was no doubt about Gattellari’s involvement in the murder. He had pleaded guilty to the murder of the deceased on the basis of being an accessory before the fact. There was never any challenge to his involvement and in particular, there was never any challenge to the fact that it was Gattellari who arranged the murder and it was Gattellari who made the payments (either himself directly or through Kaminic) to Safetli for carrying out the murder.

There was also no doubt about the circumstances of the intimidation, which occurred on the evening of 8 August 2020, a little over 11 months after the murder. Mrs McGurk was at home with her four children. She was in the kitchen washing up when she heard a “rattle” at the back door. She had been forewarned by police of what was about to occur. She went to the door and opened it to find herself confronted by a person whom she described as a “pretty foreboding looking man” standing in the shadows, who said to her:

The agreed facts recorded that Haissam Safetli had pleaded guilty and been sentenced for the intimidation offence. There was also evidence about the police operation relating to the intimidation offence, including that a person (referred to as “Witness A”) had provided information to police that Haissam Safetli had approached him about passing on a message to Mrs McGurk. A police operation was authorised so that Witness A could be involved in the passing on of the message.

Gattellari and Kaminic admitted that they were responsible for engaging Haissam Safetli to carry out the intimidation. Gattellari gave evidence that Safetli was paid an amount of $100,000 which was provided by the applicant for that purpose (T416.41-T417.13). Kaminic gave evidence to the same effect (T1245.1-T1246.26).

It followed that there was no doubt that Gattellari had arranged both the murder and the intimidation and that he made the payments (either directly or through Kaminic) to Safetli for carrying out each offence. The Crown’s submission was that the only real issue in the trial was whether the Crown had proved beyond reasonable doubt that Gattellari had done so at the instigation of the applicant.

Central to the Crown case was the strong evidence of motive on the part of the applicant and the corresponding lack of any independent motive on the part of Gattellari or anyone else.

The Crown case was that the applicant’s motive arose from a deep-seated hatred that he had developed for the deceased, which had its origins in the deterioration of their personal and business relationship, the disputes between them which followed and the significant financial cost to the applicant of the associated litigation. The Crown submitted that by early 2009, there was outright hostility and complete enmity between the applicant and the deceased. The Crown submitted that many aspects of the nature and extent of the association between the applicant and the deceased were not in dispute at the trial and were the subject of agreed facts (Exhibit G and Exhibit H).

The various uncontested business dealings between the applicant and the deceased, and the disputes and litigation which followed, formed an important part of the backdrop to the deceased’s murder, as well as the subsequent intimidation of the deceased’s wife.

In oral submissions on the appeal, the Crown summarised those business dealings and placed them in context as part of the chronology provided by the Crown at the trial (MFI 116, AB 1119). The Crown’s purpose was to identify significant events within that timeline to show that there was compelling evidence outside that of Gattellari which already told much by itself of the motivation of the applicant in originating the single joint criminal enterprise. The Crown warned against the significance of those matters being lost simply because most of them were agreed or not in dispute, or if there was an undue focus on Gattellari’s evidence in isolation.

The Crown took at its starting point the business dealings between the applicant and the deceased. Rather than repeat Exhibit G, which was a lengthy statement of the agreed facts, the Crown sought to summarise the effect of that exhibit in order to explain the motivation behind the applicant’s conduct. The Crown proposed to do so without referring specifically to Gattellari’s evidence, except where there was no dispute about it. It was then the Crown’s intention in the appeal to superimpose the evidence of Gattellari on those matters otherwise established.

In relation to the business dealings between the deceased and the applicant, the Crown submitted:

The Crown referred to four business dealings as follows:

The Crown summarised the content of those dealings and their progression as follows.

The applicant and the deceased had started doing business together in the mid 2000s. In 2007, the applicant wanted to extricate himself from a company called “Amazing Loans”, which was owned by a Mr Mathieson. The applicant had provided a loan facility of $25 million and had been granted options over a significant number of shares in the company.

The applicant wanted to get out of that company. He turned to the deceased to assist with that process. As a consequence of the deceased’s involvement in the second half of September 2007, the amount which had been drawn down on the loan facility, provided by the applicant, which was $11.5 million, was repaid. The deceased also, on behalf of the applicant, later in 2007, commenced proceedings against Amazing Loans. Having commenced the proceedings, the deceased then brokered a favourable agreement for the applicant.

As put by the Crown, things were going well between the deceased and the applicant at that point in time. The deceased had managed to get the loan facility paid out and had brokered a deal which was favourable to the applicant. That deal involved the loan facility no longer being available, Amazing Loans purchasing the applicant’s shares, and the applicant getting shares in another company called IEG. As a result, the deceased was paid by the applicant consultancy fees in excess of $700,000 for his dealings in respect of Amazing Loans.

At about the same time as the Amazing Loans deal was being negotiated in late 2007, the deceased approached the applicant in relation to the second business dealing. The deceased believed that the Mowbray and Gerroa properties could be purchased cheaply and developed for a profit.

After the deceased laid out this proposal to the applicant, the applicant provided just over $6 million at the end of 2007 to purchase the two properties. The actual purchase price was far less, leaving the deceased with a surplus of over $2 million.

In December 2007, the applicant involved the deceased in a further business dealing being the Tilley’s property at Point Piper. The background to that deal was that the applicant had at a much earlier point in time sold the Point Piper property to the Tilleys. The property was going to be developed and the applicant had provided vendor finance of $7.5 million and then later provided a further loan of $8.65 million. There was no documentation in relation to the loan and the applicant gave the deceased Power of Attorney to formalise the arrangements with the Tilleys, which he did. The deceased proceeded to arrange for that formal documentation to be put in place including registering the mortgages.

Those were the mortgages which were referred to in the consideration of Ground 4. The applicant had requested that those mortgages be re-assigned to him but the deceased had refused to do so.

In February 2008, an amount of $3.8 million was paid by the applicant to the deceased in relation to the Amazing Loans transaction. By way of interpolation, the Crown noted that this amount subsequently became the subject of a great deal of dispute. In short, the applicant maintained that he loaned the money to the deceased while the deceased maintained subsequently that it was a fee for his services in respect of Amazing Loans. That figure of $3.8 million is referred to on a number of occasions in the listening device material.

In the period leading up to May 2008, the applicant continued to show significant trust in the deceased by first granting Powers of Attorney to him in respect of the Amazing Loans dealing and in trusting him to go to Hawaii to negotiate with the owner of Amazing Loans, Mr Mathieson, in relation to his shares.

In that same period, the applicant assigned to the deceased the deeds and mortgages over the Tilley property. At this time, the applicant and the deceased entered into another new deal which involved the advance of $4.4 million and was the fourth dealing. In that deal, the deceased approached the applicant about an advance of $4.4 million to him for the purposes of the deceased on-loaning it at a very high interest rate in terms of 5 per cent per month. The applicant subsequently provided $4.4 million to the deceased.

The day after the deceased went to Hawaii in relation to the applicant’s Amazing Loan dealings, the deceased used the $3.8 million previously referred to, to pay off his mortgage on his home in Cremorne, his office in York Street and some banking and legal costs.

The use of that money became a recurring complaint by the applicant to the effect that the deceased had the audacity to use this money to pay off his house and that subsequently the applicant could not get control of that property. Kaminic gave evidence that he heard the applicant say in 2009 that the deceased had borrowed money to buy shares and did not do the job as agreed and instead “put it in his house”.

This appears to be the point where the relationship between the applicant and the deceased started to break down. According to Mathieson at that meeting the deceased said that he was not very happy with the applicant. By the end of May 2008, the applicant requested that the deceased repay the $4.4 million loan. The deceased transferred $1 million but the remainder of $3.4 million remained outstanding.

In June 2008, an arrangement was reached which involved all of the applicant’s shares in Amazing Loans being transferred to the deceased for the purpose of selling them to Mathieson but the sale had to occur within a certain timeframe. The deceased was going to receive in the order of a third of the sale proceeds if he managed to carry out the sale. The deceased was still working on the Tilley’s matter on the applicant’s behalf at this time, including lodging caveats over various properties.

By July 2008, there was a falling out between the deceased and the applicant in that the deceased was unable to sell the Amazing Loans shares within the specified time. The deceased flew to Hawaii and it is there, according to Mathieson, that he was extremely critical of the applicant. According to Mathieson, the deceased told him that he had a plan to sell the applicant’s shares at an inflated price without telling him, “burn him” and pocket the difference.

When the deceased returned from Hawaii in August 2008, he met with the applicant in his Leichhardt office and told him about the difficulties with the share transfer and asserted that he had been caused $11.5 million in damages.

By December 2008, the applicant’s solicitors were requesting that the mortgages over the Point Piper properties be reassigned to the applicant. The deceased did not comply with the request.

In mid January 2009, the deceased was arrested in relation to an arson offence at the Tilley Point Piper property and the applicant provided a $100,000 surety for his bail.

The Tilley proceedings were before the Supreme Court on 3 and 6 February 2009 in which the applicant and the deceased were both cross defendants. The Crown submitted that this was the occasion that Kaminic was talking about when he described what happened before they went to court. He described speaking to the Safetlis about their surveillance of the deceased with a view to determining for the applicant whether the deceased was going to court on that occasion.

On 5 February 2009, Mathieson received an unexpected phone call from the applicant in which he was told that the applicant had been conned and ripped off by the deceased in relation to “his transactions with Amazing Loans, with other transactions on property deals and multiple things without going into the specifics” (T1441).

Mathieson gave evidence that later that day, he telephoned the deceased and told him about the phone call with the applicant. It was Mathieson’s evidence that the deceased was extremely upset and said that he was going to expose the applicant and bring him down. The deceased made reference to taping a conversation with the applicant.

The following day, a covert recording was made by the deceased of a conversation between him and the applicant. There was an agreed fact to that effect (Exhibit G, para 66). Although that recording eventually ended up in the hands of the police, it was not before the jury at trial nor were its contents. The Crown submitted, however, that what the recording of the conversation demonstrated was that relations between the applicant and the deceased had significantly broken down and that the dispute had become personal, not merely about business.

On 17 February 2009, Mr Munro, the applicant’s solicitor, spoke with the deceased about a number of outstanding business matters, as well as the topic of bail (T2702). The reassignment of the mortgages was part of that discussion. All telephone contact ceased between the deceased and the applicant at that time. On 18 February, the applicant sent a letter to the DPP opposing a bail variation requested by the deceased. The Crown submitted that the letter (Exhibit BO) was a further indication of the break down of relations between the applicant and the deceased.

On 18 February 2009, the accused and the deceased filed separate defences in the Supreme Court in the Tilley matter. It was at about this time that Andrew Howard was retained by the applicant. He had previously worked for the deceased. Howard’s description of what he was retained to do by the applicant was to bring on the litigation with the McGurk companies. Mr Howard said (T2830) that at the time he was retained, the deceased was “permanently on the outer” with the applicant and “it wasn’t a matter of them being at arm’s length but they were bloody fighting each other” (T2891) .

On 10 March, the deceased formalised his claim against the applicant with respect to the Amazing Loans shares by having his solicitor send a letter to the applicant’s solicitor stating that he had suffered significant loss and damage and threatening to commence legal proceedings (Exhibit G, para 28, AB 163-164). On the same day, the solicitors for the deceased’s wife sent a letter of demand seeking that the applicant transfer to her, a half-share in the Gerroa and Mowbray properties. That transfer did not occur.

The Crown submitted that the extent of the breakdown in relations between the applicant and the deceased was clear from the fact that the applicant proceeded to make a statement adverse to the deceased in the arson proceedings.

The Crown summarised the commercial position as between the applicant and the deceased in mid March 2009 at follows:

The orders which the applicant sought in the Federal Court proceedings related firstly to $3.4 million of the original $4.4 million advanced.

Secondly, in relation to the Mowbray and Gerroa properties, he was seeking an amount over $2 million to account for the difference between the funds that he had provided to the deceased and what the deceased had actually paid for the properties. He was also seeking a declaration that the deceased’s home in Cremorne be charged in his favour.

On 27 March 2009, the deceased responded by filing an affidavit with the Federal Court stating that the applicant was indebted to him for $8.3 million for Amazing Loans and alleging that the applicant’s company was liable to pay costs incurred by him as trustee in relation to the Tilley’s Point Piper property. He also claimed costs in relation to that dispute generally (Exhibit G, para 92, AB 172). The Crown submitted that the relevance of this was that when going down the path of litigation, the applicant had made his claim for millions of dollars that he alleged he had been cheated out of by the deceased. In reply he was met by the deceased’s contention that he owed the deceased substantial amounts of money.

The Crown submitted that although the applicant had suffered a significant legal setback when Graham J had dismissed his interlocutory application in the Federal Court on 8 April 2009, there were other clear indications that from a legal point of view matters were not proceeding as the applicant had expected or hoped.

The Crown pointed to an affidavit which had been filed which indicated where the litigation was heading and that the litigation was not going to be easily resolved. The Crown submitted that from the applicant’s point of view, not only had the deceased cheated him out of substantial sums of money, but he had the temerity to demand more money.

The Crown noted that not only had the applicant suffered a setback in the Federal Court when his interlocutory application was dismissed but he had been ordered to pay costs which were assessed at $100,000 (Exhibit G paras 93 and 94). There was also a demand made by the deceased in respect of the separate Tilley proceedings that the applicant pay all of the deceased’s costs incurred to date.

In May 2009, the Tilley proceedings continued to escalate and there was a further cross-claim by the deceased against the applicant seeking costs for acting in the proceedings and stamp duty (AB 167, 168). The Crown noted that it was also significant that as of May 2009, the applicant’s mortgages of the Tilley property had still not been transferred to him.

The Crown submitted that it was in this context that Mathieson gave evidence of a conversation which he had with the applicant before 8 May where the applicant said “I don’t want to say too much over the telephone but I will fix him up” (T414). Mathieson also described the applicant saying that he had been conned, that he was very angry but that he did not want to talk about it over the phone. He said he wanted revenge for what McGurk had done to him (T1415).

The Crown submitted that that conversation was consistent with the state of affairs between the applicant and the deceased at that time. It was at about this time that the visits to New Zealand by Messrs Alford and Howard took place, together with a further meeting with Mathieson.

The Crown referred to the further evidence given by Mathieson that while he was having breakfast alone with the applicant, (on his version before being joined by Howard and Alford), the applicant said of the deceased “He won’t be a problem for much longer, it doesn’t matter if he goes to gaol for the firebombing charge, either way he won’t be a problem for much longer. Can’t say too much about it but he won’t be a problem and I’ll fix him up” (T1416). Mathieson described the applicant’s demeanour at this time as being incredibly angry and very serious.

The Crown accepted that Mathieson’s evidence had been challenged but that he had maintained his version. The Crown noted that although the New Zealand conversation was subject to considerable challenge, Mathieson’s evidence of the earlier telephone call, which included the words by the applicant “I’ll fix him up” was not challenged in cross-examination.

The Crown noted that the applicant returned from Auckland on 15 May 2009 and flew to Hong Kong with Gattellari, returning 21 May 2009. The Crown submitted the importance of that evidence was what was said by Kaminic. He remembered the applicant and Gattellari going on such a trip and described receiving a message from Gattellari that if the job was finished while they were in China there would be a bonus. Kaminic passed the message on to the Safetlis and when Gattellari and the applicant returned from China, Kaminic’s evidence was that he picked them up from Sydney Airport. His evidence was that the applicant said to him (T1228, 1229) “Is there any news for our friend?”

The Crown characterised that conversation as a direct discussion between Kaminic and the applicant concerning the murder. The Crown submitted that this exchange between Kaminic and the applicant was not consistent with Gattellari having a separate joint criminal enterprise ongoing at this time where he has got Kaminic involved and he was falsely portraying the involvement of the applicant. The Crown submitted that this conversation was consistent with the Crown case that there was a single joint criminal enterprise that involved the applicant. Gattellari and Kaminic understood the applicant to be referring to the deceased. Gattellari also asked Kaminic in the presence of the applicant whether there was any news. Kaminic’s response was that he had forwarded the message (about a bonus) but did not receive a reply from Haissam Safetli. Kaminic said that on the occasion of this pick up from the airport, the applicant appeared to be nervous, tense and rambling (T1229).

Kaminic gave evidence that later that day or the next day Gattellari told him that pressure should be put on Haissam Safetli to do the job as soon as possible as the applicant had legal fees of $1.3 million in relation to the deceased and there were other problems the deceased was causing (T1230). The Crown noted that the applicant had been given to the end of May to pay the $100,000 costs in relation to the Federal Court interlocutory proceedings.

The next event to occur was the approach that involved Mr Mason. He was a person who knew the applicant and knew that Gattellari was working for the applicant. Mason described in his evidence of being approached by Gattellari and being told that there was a man, he did not say his name, that needed to be killed (T2004). Mr Mason’s evidence was that Gattellari told him that the person needed to be killed because “he was costing Ron $100,000 a week” (T2004).

Mason gave evidence that he understood “Ron” to be a reference to Mr Medich. The Crown submitted that this was taken by the defence at trial as being another instance of Gattellari laying a false trail before the murder in all of his dealings with people. The assertion was that Gattellari was going around laying a false trail with people that knew the applicant. The Crown challenged that interpretation on the basis that it was the applicant that had the ongoing disputes at the time and who needed assistance, not Gattellari. The Crown submitted that it was a rather dangerous course for Gattellari to be following with people who knew the applicant, i.e. Kaminic and Mason. In such circumstances there would be a real likelihood of Gattellari’s subterfuge getting back to the applicant.

The Crown noted that as at 21 June 2009, cross-claims were filed in the Federal Court litigation in respect of the Gerroa and Mowbray properties and there was no sign of resolution of that dispute at that time. If anything, there was an escalation. The Crown submitted that the incident on 3 July 2009 when the applicant was involved in “the staged car accident” indicated the extent of the breakdown between the applicant and the deceased and also a preparedness to go outside the legal system. There was no issue that the motor vehicle accident had been staged. Witness B gave evidence about the car accident and reporting to the deceased (T1547). In mid July 2009, the deceased’s solicitors sent a letter to the applicant demanding over $150,000 as money owed to the deceased for an indemnity under declarations of trust. The applicant paid this amount.

It was the Crown case that at about this time, an event occurred which provided an opportunity for the murder to be carried out and the evidence disclosed an important sequence of events which implicated the applicant on the account of Kaminic. It related to a bail variation for 20 to 24 July 2009 to allow the deceased to go to Jindabyne. There was evidence that they were the relevant dates for the bail variation. Kaminic gave evidence of an occasion when the deceased’s bail was discussed at the Tuscany Restaurant between the applicant and Mr Howard (T1231).

The evidence of Kaminic was that he heard Mr Howard ask the applicant “did you hear that McGurk asked police to go to the snow and report from there?” The applicant responded that he did not hear anything and did not know anything about it but that he would ask Gattellari if he knew anything about it. Gattellari on Kaminic’s account was seated at the same table but two metres away. After lunch Kaminic said that he saw the applicant and Gattellari speak to each other.

Kaminic got into the car with Gattellari and Gattellari asked him to send a message to Haissam Safetli to meet with him and Mr Kaminic (T1232) and that meeting took place. Kaminic, Safetli and Gattellari were present. Gattellari told Haissam Safetli that the deceased was going to the snow. Haissam said that he had no money to go. Kaminic was unsure when Gattellari gave Haissam the money, whether it was that day or another day, but he did give him money, which he believed was about $2,000-$3,000 (T1233).

The Crown submitted that the importance of this evidence was that Kaminic independently of Gattellari gave evidence of how the information about the bail variation came to be in the possession of the applicant and what he did about it. Having acquired that knowledge on Kaminic’s account, he told Gattellari, the minute after they meet that the Safetlis have to be contacted.

The Tilley proceedings were settled at the end of July 2009. The settlement was only between the applicant and the deceased, not between the applicant and the Tilleys. There was a separate issue concerning the reassignment of the mortgages that was going on between the applicant and the deceased. That is what was resolved at that time. The Crown noted that the matter resolved in a way which resulted in the applicant having to pay, not only his own legal costs, but also the deceased’s legal costs. That was when the mortgages for the Point Piper property were transferred to the applicant on 7 August 2009.

The Crown noted that much was made in the submissions of the applicant that the Tilley proceedings were resolved. However, the applicant received a bill of costs on 10 August from the deceased’s solicitors for over $70,000. He had it assessed and did not pay it until much later. As it turned out, only a small amount was taken from the Memorandum of Fees and efforts on the part of the applicant to reduce the fees by negotiation failed.

The Crown agreed that the applicant was successful in getting his mortgages back but he was clearly not pleased that he had to pay his own legal costs and those of the deceased. Moreover, this was only one aspect of the dispute. There were other major ongoing disputes that remained outstanding between the applicant and the deceased with ongoing legal costs. There was uncontested evidence that in the period between 5 March and 31 August 2009, the total legal fees paid by the applicant to the various firms of solicitors in respect of litigation with the deceased, totalled more than $848,000 (Exhibit BS, AB 805).

The Crown noted that apart from the Tilley proceedings, there were still proceedings ongoing in the Federal Court for the Mowbray and Gerroa properties. There was the $4.4 million advance. There was the Amazing Loans issue unresolved. There was also the fact that the charges in respect of the arson were withdrawn. The Crown noted that these legal proceedings were well and truly active in that on 25 August 2009, the deceased filed a second cross claim against the applicant in the Federal Court which asserted that he was due $11.6 million in unpaid fees pursuant to the Amazing Loans deal.

The Crown accepted that the single joint criminal enterprise was ongoing, the state of mind was ongoing and that the Crown had to show that the motive continued to exist and that the outcome was still one that was being sought by the applicant. The Crown submitted that all of this material, based on the Crown’s chronology, supported the Crown’s case that the joint criminal enterprise was ongoing, that the agreement continued to exist and that at no point in time did the applicant pull back from the agreement. The Crown submitted that is the significance of this evidence which set out chronologically the relations between the applicant and the deceased.

The Crown submitted that it was leading this evidence to demonstrate that the single joint criminal enterprise was ongoing and continued all the way through to the intimidation. The Crown submitted that even though the agreement had been formed, it needed to prove why it continued to exist even though the murder had not yet occurred. The Crown submitted the agreement continued to exist because the outcome, i.e. the motive for the agreement also continued to exist throughout this period.

The Crown relied upon the evidence of Kaminic to the effect that in the weeks leading up to the murder, the applicant and Gattellari were speaking about McGurk all the time, “they didn’t stop,” (T1233).

The Crown noted that on the day of the murder, 3 September 2009, the officer in charge of the arson case, Detective Hetherington, phoned the applicant that afternoon to advise him that the charges against the deceased had been withdrawn by the DPP (T1855). When Detective Hetherington was asked about the applicant’s response to that news, he replied that the applicant was emotional, that he was distraught and sounded like he was close to crying about it. He said words to the effect of “the bastard’s down at the chop house restaurant right now celebrating” (T1856).

Detective Hetherington gave evidence that he told the applicant to focus on his civil matters with the deceased and that the arson charges were now out of his hands. Detective Hetherington said that the applicant made reference in that phone call to the fact that it had cost him a lot of money, referring to his civil court proceedings. Telephone records confirmed that this conversation with Detective Hetherington took place.

The Crown submitted that all of the evidence to which she had referred up to that point of time, came from sources other than Gattellari. This was in line with the Crown’s opening observation that the process she proposed to follow was to set out the available evidence following the Crown’s chronology and then subsequently superimpose upon that the evidence of Gattellari. The Crown submitted that the end result of that process would show that there was a very considerable body of evidence beyond that of Gattellari which supported the Crown case and that the evidence of Gattellari found considerable support from other sources of evidence in the proceedings.

Howard, Kaminic and Gattellari had lunch with the applicant on the day following the murder. Howard observed that the applicant was complaining about the level of interest by the media and was unsettled by the fact that he was being publically connected to the murder (T2949). Kaminic described the applicant at the lunch as being tense, red faced and very nervous. There were media and photographers outside the restaurant.

On 7 September 2009, police executed a search warrant at Gattellari’s home in Chipping Norton. The Crown submitted that the significance of this was that Gattellari was a suspect in the murder at an early point in time and would have been aware of that fact. The Federal and Supreme Court proceedings between the applicant and the deceased’s wife and/or the deceased’s estate continued after the death of the deceased. On 5 November 2009, the applicant signed a caveat which was to be placed over the home of the deceased at Cremorne (Exhibit H2).

On 18 November 2009, the applicant filed a defence to both the claims of the deceased’s wife in respect of the Mowbray and Gerroa properties and to the deceased’s claim for outstanding fees for his work on Amazing Loans. The Crown submitted that the evidence that the bond between Gattellari and the applicant at that time was still strong came from the telephone intercept material.

On 15 January 2010, at 11:18 a conversation between the applicant and Gattellari took place (Exhibit T2, pp 58 – 67, AB 268 – 277). The Crown submitted that this conversation reflected the closeness of the relationship between Gattellari and the applicant in the context of the applicant talking about a complaint by his wife. The applicant said that he told his wife “Lucky and I are friends we are doing a lot of things together”. Gattellari responded by saying “The biggest problem with me is that I’m your friend. She knows that you can rely on me and you can depend on me and she does not like that”. And Gattellari said “All right anyway let’s not talk anymore on this phone” and the applicant said “exactly”.

The Crown submitted that clearly both the applicant and Gattellari were mindful that there could be a telephone intercept. Nevertheless, the nature of the relationship between them remained close in that period.

The Crown also relied upon evidence from Kaminic about the fact that after the murder, Haissam Safetli was becoming erratic or very anxious which also explained why if there were a single joint criminal enterprise, Safetli was not approached to engage in the intimidation (T1340). The Crown submitted that it was important that there was evidence of a reason why Safetli was not utilised.

The Crown relied on a discussion on 4 February 2010 between the applicant and Gattellari (T2, pp80-86, AB 290-296). Gattellari spoke to the applicant about organising a driver for him and said “And I’ve organised a couple of other matters which we discussed”. The applicant said “yeah” and Gattellari said “which will take effect as tomorrow morning, as of tomorrow morning as well”. The applicant responded “all right”.

The Crown submitted that the importance of that conversation was that the next day, Crockett commenced surveillance of the applicant’s wife (Exhibit V, which was the report he said he prepared in relation to the surveillance (AB 431 and 434)). The day after is when there was an approach to Mr Costa who was able to give evidence that 6 February 2010 was the date when he attended Gattellari’s house for the purposes of a pre-arranged meeting.

It was Costa’s evidence that Gattellari asked him or told him that the message was for a lady and the message was “pay or return the money back your fuckin’ husband stole” (T1560). Costa was taken to his statement where he said “Lucky wanted me to deliver the message while he was overseas in China and the message was for someone with a lot of money” (T1574).

The Crown submitted that this was consistent with Safetli having become erratic, so that it was necessary to reach out to an alternative such as Mr Costa. The Crown submitted that in doing so, Costa was able to give evidence as to the terms of the message and the fact that it was to occur while they were overseas.

The Crown relied on a conversation on 12 February 2010 (Exhibit T2, 91-93, AB 301- 303). There was a discussion of a need on Gattellari’s part to tie up matters before going away, “tie up the loose ends on those particular development jobs that you and I discussed”. The other party was the applicant and he said “yeah okay is everything all right”. Gattellari’s response was “like everything is all right according to plan, it’s all looking a bit pretty comfortable”. But at the end of the conversation Gattellari says “I just need to put a bit more work into it myself” and the applicant says “yep” and Gattellari says “In regard to the contractors”.

The Crown submitted that the term “contractors” came up just before the intimidation and the applicant says “yep”. There were ongoing costs associated with the legal proceedings in respect of Mrs McGurk. There were calls that are recorded when the applicant is complaining about his lawyers and how much it is costing (23 February 2010) (Exhibit BG p1 and 2, AB 726 to 727).

The Crown submitted that the effect of these conversations is that the intention to intimidate the deceased’s wife is ongoing and that the applicant was well aware of that fact. The Crown further submitted that plans were made to go to China, which was in accordance with what Costa was initially told. However, the arrangements did not fall into place because Costa’s evidence was that he was stringing them along and other arrangements had to be made.

The Crown referred to a call dated 3 May 2010 (AB 733 – 735) where there was a clear discussion between Mr Howard and the applicant about what pressure to exert on Kimberley McGurk and the fact that Howard looked through some old invoices and found two amounts outstanding which had not been paid by the deceased or a company associated with the deceased. Howard told the applicant that he could easily issue them with a statutory demand which he could use to threaten to wind up her company. The Crown submitted that there was a clear intention with which the applicant appeared to agree to exert (improperly) pressure on the deceased’s wife.

The Crown submitted that the importance of the conversation is that the applicant at the time was clearly looking for ways to exert pressure on the deceased’s wife, even though it was Howard who was doing the actual searching. The Crown submitted that the importance of that conversation is that Howard was looking for a collateral way in which to put pressure on the deceased’s wife and they were interested in who was paying the legal fees for Mrs McGurk.

The applicant’s company filed a further amended pleading seeking orders which included the payment of the $3.4 million, the payment of the $2 million in relation to the Mowbray/Gerroa properties on 19 May 2010 and an order that Kimberley McGurk pay $3.8 million.

The Crown noted that at this point the applicant was bringing into the litigation with Mrs McGurk the $3.8 million figure that had been used to pay off the house.

On 26 May, there was a setback because the Supreme Court refused the applicant’s application to extend the caveat over the deceased’s home at Cremorne and ordered the applicant’s company to pay Kimberley McGurk’s costs as well as his own. There were phone calls that day where Howard was reporting back on those proceedings with Mrs McGurk to the applicant and there were a number of statements in those calls where he was expressing his clear frustration in relation to the dealings with Mrs McGurk (Exhibit VJ, pp11.13, AB 736 and 738).

The $3.8 million figure was discussed and how the applicant’s own statement was being used against him in the proceedings because he had nominated in a police statement that the $3.8 million was a “fee” rather than a loan. The reaction to the proceedings not going well was very clear and demonstrated how strongly the applicant felt about it in that call. The applicant said at the end:

At AB 739, there was another call which occurred on that day in which Howard described the applicant as furious because Howard was explaining that they got “cleaned up” in respect of the caveat proceedings. There was a discussion about the fact that:

The applicant then continued to complain about how disappointed he was and how much money he had spent and he had not got a result. Howard described him as furious on that particular occasion. The Crown submitted that this was important because it showed things were not going well with Mrs McGurk and that he was experiencing a high level of personal frustration. The Crown also tied that in with Gattellari’s evidence. The Crown submitted that the situation as at the end of May was not proceeding well from the applicant’s point of view. The Crown submitted that this frustration was leading towards the implementation of the ongoing arrangement to intimidate Mrs McGurk. This was all leading obviously at this point to the intimidation and the fact that what’s been alleged was that there was this ongoing arrangement that there was to be the intimidation.

The Crown submitted that the telephone intercepts needed to be read chronologically in order to understand the gradual build up of frustration and anger on the part of the applicant as a result of the setbacks which he was experiencing in his dealings with Mrs McGurk.

The next telephone intercept was 21 June 2010. That was a call between Howard and the applicant (Exhibit BJ p20-25, AB 745-750). The Crown submitted that that particular call included statements by the applicant referring to Mrs McGurk. Those statements included:

The Crown submitted that the applicant’s animosity and hatred for the deceased was confirmed in that phone call and it extended to Mrs McGurk who was not caving in, in respect of the legal proceedings.

There was a further phone call on 23 June between David Vereker who was an associate of Mrs McGurk and the applicant (Exhibit BJ pp26 – 33, AB 751 – 758). It included a statement by the applicant in respect of Mrs McGurk, “the only settlement I’m going to hear is if she gets out of my bloody life and gives me back the money that they’ve stolen you know”. The Crown submitted that this was further confirmation that the applicant was aggrieved because he believed millions of dollars had been stolen from him.

In June 2010, there was evidence in the form of Exhibit BS that confirmed that the total legal fees involved post murder in terms of the litigation with Mrs McGurk totalled more than $576,000. On 12 July 2010, there was a call between Mr Howard and the applicant (Exhibit BJ pp 37 - 39, AB 762 – 764). In that call (which was six weeks after the court’s refusal to extend the caveat) the applicant said how furious he was about it and made the following statements:

On 16 July, (Exhibit T2, p170 – 171, AB 380 – 381) there was a call where Gattellari spoke about there being a couple of matters that had come up and that they were going to have to be resolved. On 30 July 2010, there was a conversation between the applicant and Gattellari, (Exhibit T2 p185 – 186, AB 395 – 396) where Gattellari told the applicant:

The Crown submitted that this was a reference to Gattellari saying that everything needed to be wrapped up in order for the intimidation arrangements to be enforced because they were due to leave for China.

On 30 July, there was a further conversation between Gattellari and Steven Giuliana where Gattellari confirmed that he had dashed into Leichhardt which was where the applicant’s office was at that time to pick something up, a parcel (Exhibit T2, p187, AB 397).

On the following day, Saturday 31 July, there were calls between Gattellari and Kaminic (Exhibit T2 188 – 189, AB 398 – 399) where Kaminic said that he had spoken to “our friend” who cannot come on Monday morning to pick up his order because he has an appointment and that he can do it Monday afternoon. Gattellari agreed that that was okay. On Monday 2 August 2010, there was a conversation between Gattellari and Kaminic about that meeting and that it had taken place in the afternoon (Exhibit T2, p 190 - 191, AB 402 – 404).

On same day, the applicant telephoned Gattellari and there was a discussion about the flights and Gattellari replied at AB 402 “we won’t be leaving on Wednesday. I’m just waiting to confirm something else before I go anywhere so I won’t get the details of the flights until later this afternoon.”

Gattellari said in the same the conversation “that they even may have to postpone maybe instead of leaving Thursday maybe leave on Sunday” and Gattellari said “there’s a good reason for it which he will explain to the applicant when he sees him”.

About an hour and 45 minutes later, Gattellari and the applicant spoke again and there was a further exchange which is at AB 406 to 407 where the applicant said “there’s lot of things I need to talk to you about but listen but what’s the situation, that we’re not leaving on Wednesday now?” and Gattellari says “there’s a couple of little hiccups that I’ve got to get over before I can go anywhere in regards to our business. There’s no point, there’s no point in me leaving here until I definitely have everything else wrapped up”. The applicant’s response was “well yeah, we 100 per cent you know”. And then Gattellari later in the conversation said, “yeah cause I need to finalise my other business connections here before I can leave” and the applicant said “yep”. Gattellari said, “so let’s talk about it in the morning cause I’ll explain to you why I need to be here for, until I can finalise, sign those documents I’ve got to sign.”

The applicant said “mm” and they agreed to catch up the next day.

By Tuesday 3 August, Gattellari rang Shipley (AB 409 – 410) and said that “arrangements need to be made for China, to travel to China and that he and the applicant would leave on the Thursday 5 August and that they wished to return on the Monday 9 August” which was the day after the intimidation took place.

On Wednesday 4 August, (AB 411) Kaminic rang Gattellari and asked Gattellari “have you got this one for my friend for after?” Gattellari said, “no I’ve got one right now if you want to”.

Kaminic said that he would get his friend to come and see Gattellari over there. There was a telephone call on 4 August at 11:24am where Gattellari telephoned the applicant to discuss the travel arrangements.

The Crown submitted that it was not sufficient just to look at the call without putting it in the context of that chronological sequence to which the Crown submissions were directed. The Crown submitted that account had to be taken of what the other telephone intercept material could show. The Crown submitted that if one went to the telephone call of 4 August, it can be seen that this was a call that included Gattellari’s statement to the applicant (AB 414). It can be seen that Gattellari was explaining to the applicant “Yeah but we couldn’t, we couldn’t Ron you know because we’re not taking a holiday trip here, the trip is based on certain things that need to happen at certain times” and the applicant says “Yeah”. Gattellari continued “I can’t just fucking decide to go at the drop of a hat”. The applicant said “Yeah, I understand that” and Gattellari said “Unless other matters are fixed”. The Crown case was that the other matters were fixed because they ended up flying out on Friday 6 August 2010.

There is then a conversation, which the Crown regarded as important, which is at AB 415, between Gattellari and Kaminic. The Crown submitted that account had to be taken that this was the day before they were going to fly out. The conversation that took place uses language that the Crown had referred to in earlier telephone intercepts where Gattellari said “Listen, do you reckon you and the contractor, you and that building contractor can come over and talk to me about this fence” (AB 415). Kaminic responded “But what do you have to - just have to give him the last piece of paperwork or” and Gattellari said “Yeah, the last bit of information on where the line has got to go and how deep and all the rest of the shit”. Kaminic said “Oh, I’ll ask him to come and you know but if it is” and Gattellari said “Unless I can give you the details and you pass them on”. Kaminic and Gattellari agreed to meet in half an hour.

The Crown noted that there was evidence from Kaminic about that conversation at AB 2384 where Kaminic gave evidence that he understood that Gattellari was referring to Haissam Safetli when he used the word “contractor”. Kaminic understood it was in relation to the last instruction that needed to be given for the visit to Mrs McGurk.

Kaminic also said in his evidence that he had been advised that it was to happen while they were in China and that the message that was to be passed on was “You have to pay the debts of your husband” (AB 2391 and 2384). There was a conversation later that evening on 5 August between the applicant and Gattellari (AB 386 – 388) where there was confirmation that everything was all right. Gattellari asked the applicant “Is everything alright?” The applicant said “Yeah”. They agreed to see each other at the airport and the applicant spoke about going forward. They flew out on Friday 6 August.

The Crown relied on evidence led at trial without objection. There was a conversation recorded on 6 August 2010 where Safetli told Witness A, who was going to do the intimidation with him, that Mrs McGurk was still not paying the money after her husband died and the message was “Fix the things your husband did wrong and give the money”. The evidence was that Safetli also said to Witness A that they only had two days to pass on the message (AB 3573). That evidence was led through a police officer. The Crown submitted that this was confirmation they were leaving the jurisdiction that very day. It needed to be done and they had two days to do it. The Crown submitted that it occurred two days later on Sunday 8 August. The intimidation occurred involving Witness A and the message is set out in Exhibit BF which was the recording of the approach to Mrs McGurk (AB 711-712). The message included “Don’t be a con man, pay your husband’s debts”.

The Crown submitted that the language used in the intimidation was important in that there was unchallenged evidence from Mrs McGurk that the applicant was the only person with whom she was engaged in litigation and that he was the only person to whom it was alleged her husband owed any debts. That evidence was not challenged (T1313).

The following day, the police learned that Safetli had paid Witness A $10,000 for his participation in passing on the message to Mrs McGurk. Shortly after Haissam Safetli provided Witness A with the money, he was observed attending a café in Liverpool where he met with Kaminic. The Crown submitted that this was consistent with Safetli reporting that the job had been done and was also consistent with the telephone conversation between Gattellari and Kaminic on 10 August 2010 while Gattellari was still in China (AB 417-418). In that conversation, Kaminic was clearly indicating that everything was under control, i.e. “It’s all good”. Kaminic finished with the words “Everything’s all right and relax mate”.

The Crown submitted that upon the return to Sydney from China of the applicant and Gattellari on 12 August, there was a further conversation between Gattellari and Kaminic which was consistent with Kaminic reporting to Gattellari that the job had been done (AB 420-421). Gattellari’s response is “OK terrific”. There was evidence from Kaminic that once Gattellari returned from China with the applicant, he gave Kaminic $50,000 to give to Haissam Safetli (T1256).

The Crown submitted that the applicant’s actions upon his return to Sydney and in particular the telephone call (at AB 769-770) were important. This was because less than 24 hours after getting back from China, the applicant was in contact with Mr Howard and was effectively directing him to arrange some form of contact with Mrs McGurk’s solicitors. The Crown submitted that the overwhelming inference was that the applicant wished to make those arrangements in order to gauge the effect of the intimidation on Mrs McGurk. In the course of that conversation, the applicant said “She has to pay out the amounts and get out of our lives you know” and at the end of the conversation he said “You have a list of all the things and just say well that is the situation sort it out”. The Crown submitted that this conversation provided confirmation that the applicant following upon the China trip, immediately felt emboldened to make arrangements to resolve issues with Mrs McGurk.

The Crown noted that Crime Commission hearings took place in September and October 2010 and that Gattellari was arrested on 13 October. The Crown relied on the evidence of Mr Shipley when he spoke to the applicant concerning Gattellari’s request for payment of his legal fees where the applicant responded:

Shipley described the applicant as nervous, concerned and shaking at the time and when he (Shipley) asked the applicant if he was involved in the murder, the applicant replied “Don’t be bloody stupid, watch what you say, the walls have ears” (T1465). The Crown submitted that the foregoing ([628]-[746]) comprised a chronological account of what the evidence in the trial could establish which was completely independent of Gattellari. The Crown submitted that that evidence, which was otherwise sourced, did not depend on the credibility or reliability of Gattellari. It constituted a cogent body of evidence which in itself established much of the Crown case against the applicant before consideration was given to Gattellari’s evidence.

What the Crown then did in oral submissions was to undertake an assessment of Gattellari’s evidence while also having regard to what the chronology and other evidence had already established. The Crown characterised what it proposed to do as “overlaying” Gattellari’s evidence on the evidence otherwise independently established. The Crown submitted that when that was done, it could be seen that Gattellari’s account matched many of the events which the Crown described in the chronology and which were established by other evidence.

The Crown noted that at AB 1482, towards the end of 2008 or 2009, Gattellari became aware that the applicant and the deceased had experienced a pretty severe falling out over some business dealings which Gattellari said led to the applicant becoming “quite verbal about the problems that he was having with the deceased”. The Crown submitted that that was consistent with the evidence in the chronology. Gattellari’s evidence was that by early 2009, the applicant was prone to outbursts of anger where he would come out with different derogative phrases about what he felt about the deceased. Gattellari recalled one occasion when the applicant said in relation to the deceased:

The Crown submitted that that was consistent with what was outlined in the chronology insofar as there were references to deeds being tied up. That was consistent with the reference to the Tilley proceedings and trying to get his mortgages back. There was the amount of $3.8 million that did go into purchasing the house. The Crown submitted that Gattellari’s evidence was correct and supported the proposition that at the time litigation issues were developing between the applicant and the deceased. The Crown submitted that Gattellari described in his evidence how the applicant’s hatred of the deceased eventually reached the point where he said to Gattellari:

The Crown submitted that that conversation was obviously relevant to the genesis of the murder and took place in the office at Leichhardt. Gattellari said that Kaminic was outside within the reception area but in terms of the timing issue, he did not remember when exactly that comment was made, i.e. “... no. It would It would have been three to six months” (AB 1495).

The Crown submitted that that estimate was generally consistent with the note made by Gattellari’s solicitor as set out in Crown submissions at [456].

The Crown submitted that the next important conversation was Gattellari relaying to Kaminic what he had been told by the applicant. The Crown referred to the next conversation when Gattellari received confirmation from the applicant that he wanted to go ahead with killing the deceased and that Gattellari’s evidence was that he spoke with Kaminic again in the car and Kaminic suggested that the Safetlis may be interested.

The Crown submitted that there was confirmation from Kaminic of what he was told in that second conversation. The Crown noted that the detailed evidence in relation to those matters was set out when dealing with Ground 4. The Crown submitted that there was confirmation from Kaminic about being present at the office at Leichhardt when there was a meeting between the applicant and Gattellari and that following that meeting, Gattellari spoke to Kaminic and said “It seems Ron wants to go all the way” (AB 2361).

The Crown submitted that there was confirmation, both as to the timing and the content of what Gattellari said was told to him by the applicant. The Crown submitted that Gattellari’s evidence about the Safetlis not immediately agreeing to the terms or price for the murder and Gattellari’s evidence that they were prepared to carry out the killing for $300,000 plus cash up front for surveillance and expenses was supported by Kaminic’s evidence, which although not identical, was similar, i.e. $50,000 up front and $250,000 after finishing the job.

The Crown submitted that Kaminic (AB 2364) gave evidence which supported Gattellari, i.e. that he told the Safetlis that the price seemed okay but he had to check with the applicant being the one who was funding the offence. Gattellari’s evidence was that (AB 1490) the applicant’s response was that it was expensive but “no, he’s got to go so I’ll get the money”.

The Crown submitted that as outlined in its written submissions [390] Gattellari advised the applicant of a total price of $500,000 for both the murder and intimidation. In its submissions at [394], the Crown covered the period leading up to the murder. Gattellari’s evidence that the applicant told him that the litigation against the deceased was not proceeding as planned was confirmed by the chronology and the evidence there referred to. The chronology was also consistent with an occasion before the murder where Gattellari said that the applicant had said:

The Crown submitted that this was fully consistent with the chronology and the delay in the implementation of the murder. Gattellari’s evidence that he relayed the applicant’s concerns about how long it was taking and he received the response that they were doing their best and that the time was not suitable. Kaminic gave similar evidence (AB 2460) when he said that there was a delay on the part of the Safetlis in carrying out the murder and that Gattellari would ask Kaminic to send messages to the Safetlis to find out what was happening and that the Safetlis would answer that they were getting ready and that it would be done.

The Crown submitted that the evidence from Gattellari about the approach to Ron Mason was confirmed by Mason. Gattellari’s evidence at AB 1496 that there was an occasion when bail was modified to allow the deceased to go on a ski trip to Jindabyne and the subsequent attempt to have the killing carried out then was confirmed by Kaminic and independent evidence as to the change in bail conditions.

The Crown submitted that Gattellari’s version of events following the murder was set out in the Crown’s written submissions from [401]. The Crown submitted that the first issue that there was a media frenzy, which led to the intimidation being postponed, was confirmed in a number of ways by the chronology. There was a media frenzy and Kaminic confirmed Gattellari’s evidence that the reason why they did not proceed to execute the next stage of the single joint criminal enterprise was due to the amount of publicity surrounding the murder.

The Crown submitted that Gattellari’s evidence about arranging surveillance on behalf of the applicant of his wife was confirmed by the chronology and other evidence in the trial. The Crown referred to the evidence of Gattellari approaching Costa. The Crown submitted that although Gattellari was clearly wrong about the timing of that event, his evidence was consistent in that there was a reach out to Costa because Safetli was becoming “a little erratic” (AB 1552). This was also consistent with Kaminic’s description and also consistent with why the Safetlis were not first approached about carrying out the intimidation but that it was Costa who was approached (AB 2479).

The Crown noted that Gattellari’s evidence as to the applicant going “off like a fire cracker” when the refusal of the court to extend the caveat was communicated to him, was confirmed by a number of pieces of independent evidence and was not controversial. The Crown did not set out further examples of Gattellari’s evidence being otherwise supported in relation to the period after the murder leading up to Gattellari’s arrest. This was because those matters had already been dealt with in the Crown’s written submissions. The Crown submitted that in relation to the telephone intercepts, Gattellari gave evidence as to the subject matter of the various conversations and the chronology set out clearly when they occurred which in itself supported the Crown’s interpretation of them. The Crown submitted that in most cases it could be seen from the conversations themselves that they were clearly for the purposes of planning the intimidation.

The Crown submitted that the process of overlaying Gattellari’s evidence on the chronology provided support for his account in that he was describing key events in relation to which there was evidence independent of him. The Crown submitted that contrary to the applicant’s submissions, Kaminic provided substantial support for Gattellari’s evidence. The Crown submitted that its case was not just about Gattellari and that his evidence was not to be looked at in isolation but in the context of the trial as a whole.

The Crown submitted that its case was supported by the evidence of Kaminic as to his understanding of the motivation for why each of these offences needed to be committed. The Crown submitted that on each occasion, the reasons identified were those which would benefit the applicant, not anyone else. The explanation that was given for the applicant wanting to go all the way was because the deceased was causing too many problems and there was money missing. These were concerns of the applicant not Gattellari or anyone else. The Crown submitted that similarly when the murder had not been completed following the trip to China by Gattellari and the applicant in May 2009, Kaminic said that it was conveyed to him that the job needed to be done as soon as possible as the applicant had legal fees of $1.3 million. Again, these were matters of concern to the applicant not Gattellari (AB 2369).

The Crown made submissions concerning the absence of Haissam Safetli. The Crown accepted that there was no explanation for his absence and that it was appropriate for a Mahmood v State of Western Australia direction to be given. The Crown identified the issue as whether the absence of Haissam Safetli should have given rise to a reasonable doubt as to the guilt of the applicant on the part of the jury. The Crown submitted that when one had regard to all of the evidence in the trial, and in particular the evidence of what was said by Haissam Safetli in the recorded conversations, no such doubt should exist.

The Crown submitted that no such doubt should arise because there were a number of listening devices which recorded conversations between him and Gattellari and Kaminic. What was said on these occasions was before the jury and gave a clear indication of what was the position of Haissam Safetli. The Crown submitted that it was clear from the listening devices that the conversations with Gattellari and Kaminic were premised on the enterprise being conducted on behalf of the applicant and had been so from its inception. The Crown submitted that when one actually looked at the listening device material, that conclusion clearly emerged.

The Crown submitted that when a careful examination was made of the listening device material, a reasonably clear perception could be gained of what his evidence was likely to have been and its importance. The Crown submitted that this was because Safetli had named the applicant and was seeking assurances and financial support from him even though Gattellari was continuing to protect him. The Crown submitted that such evidence was inconsistent with any Safetli plot to kill the deceased and/or intimidate the deceased’s wife.

The Court was taken to an intercept of 15 September 2010, being a conversation between Gattellari and Safetli, where the following was said:

The Crown noted that the reference to a divorce going through made it clear that this was a reference to the applicant who was in the process of getting a divorce (AB 474).

The Court was taken to the transcript of an intercept of 20 September 2010 (AB 494-507) which relevantly provided:

The Court was then taken to AB 515:

It was the Crown submission that the references to the “big boss” was a reference to the applicant.

The Crown next took the Court to the transcript of an intercept dated 5 October 2010 where the following was said:

The Crown referred to a further transcript of an intercept on 5 October 2010 (AB 538) where the following was said:

The Crown referred to an intercept transcript of 8 October 2010 (AB 556) which provided as follows:

The Crown relied on a further transcript of an intercept on the same date (AB 560) as follows:

The Crown submitted that this last transcript needed to be read in the context of those earlier conversations. The Crown relied on the terms of this particular conversation and how it progressed. The Crown submitted that what Gattellari was saying was “they’re arguing about the wrong fucking thing” and Safetli says “Listen where’s the money gunna to come from if he’s not there?” Gattellari says to Safetli “Where’s the money gunna come from if he’s not there” and Safetli says “That’s why I need a guarantee from him”. The Crown submitted it was clear that Safetli was persisting with the idea that there was a Mr Big, which was consistent with all the other references that the Crown took the Court to and all the other references to “Ron”. Gattellari’s response is “But I’m giving it to you. I’m giving it to you.”

The Crown also relied upon the following transcript of an intercept taken on the same occasion (AB 562):

The Crown relied on AB 569, which was a transcript of part of the same conversation, where the following was said:

There was a further intercept on 8 October 2010 (AB 570-571):

An intercept of 13 October 2010 (AB 592) was:

Another intercept transcript of 13 October 2010 (AB 594) was:

The Crown submitted that the above intercepts supported the proposition that there was no separate Safetli plot that existed only between Gattellari and Safetli. The Crown submitted that these intercepts confirmed the Crown case in that Safetli was saying that he was acting for Mr Big, i.e. he was acting for the applicant. The Crown submitted that when regard was had to the whole of the evidence, the absence of Haissam Safetli would not give rise to a reasonable doubt. The Crown submitted that in the circumstances of this case, it was well open to the jury to find there was no such reasonable doubt as a consequence of the absence of evidence from Haissam Safetli, even though the jury were given the Mahmood v State of Western Australia direction.

Gattellari gave evidence that he did not know the deceased very well and did not consider him a business associate or a friend. His opinion of the deceased was that he was “a bit of a conman” (T336). The Crown led evidence from Gattellari as to the occasions which he recalled when he had met with, or had a dealing with, the deceased. (See also [414]-[416] hereof.)

These occasions were limited to the following:

The Crown submitted that while Gattellari could not recall the precise timing of those meetings, other records and evidence independent of Gattellari showed that they took place in the period 30 November 2007 to May 2008 (Detective Howe gave evidence that the last telephone contact between Gattellari and the deceased was 26 May 2008 (T2496; T2644).) At the time of those meetings Gattellari was aware that the deceased and the applicant had some business dealings but Gattellari was not aware of the specific details of those dealings (T344).

The Crown submitted that in addition to the evidence of the limited contact between Gattellari and the deceased, there was evidence from persons who worked for the deceased at various times (Tiffany Boys, Ignacio Damiani and Tamara Easton) as to the absence of any dealings or any mention of Gattellari by the deceased during the periods that they worked for him. The Crown noted that at least one of them was working for the deceased at any given time after 19 May 2008 through to the date of the deceased’s death.

Mr Shipley gave evidence that he was not aware of any problems between the deceased and Gattellari (T1804). Matthew Crockett’s evidence was also that he did not understand that there was any relationship between the deceased and Gattellari (T1600).

The Crown noted that when it was suggested to Gattellari that he implicated the applicant in the murder to get a lighter sentence, he said that this was not true. He was asked why he made his statements about the applicant’s involvement. Gattellari responded “Because I was guilty and so was the [applicant]”. He said that he had no reason whatsoever to want to harm the deceased or want him dead, and that he barely knew the man (T1186). The Crown submitted that that explanation was entirely consistent with the evidence in the trial that there was no enmity between Gattellari and the deceased.

The Crown submitted that the applicant at AWS [48], [214]-[217] and [237]-[238] was now for the first time, asserting that Gattellari had his own motive for the offences, independent of the applicant, in terms of having his own personal financial interest in seeing the applicant resolve his disputes with McGurk by way of freeing up funds and having the applicant’s attention return to the electrical companies venture. The Crown submitted and as was acknowledged at AWS [237], neither this, nor any other motive, was ever put to Gattellari at trial. The Crown submitted that there was no evidentiary basis for such a motive to be suggested.

The Crown submitted that Gattellari had no involvement with the deceased’s companies or the deceased’s business dealings with the applicant. Similarly, the deceased had nothing to do with Gattellari’s businesses. There was no litigious dispute between them, nor was there any money owed by the deceased to Gattellari. There had not even been any telephone contact between Gattellari and the deceased since May 2008, some sixteen months before the deceased was murdered.

The Crown submitted that there was simply no evidence of anything which could give rise to any motive on behalf of Gattellari to kill the deceased for his own reasons. The Crown submitted that on the evidence, Gattellari and the deceased clearly had limited knowledge of, and limited association with, each other. The Crown submitted that while there was evidence of them having a difference at one time in the previous year, that issue paled into insignificance when compared with the disputes existing between the deceased and the applicant which have already been identified in these proceedings.

The Crown submitted that the absence of any motive on the part of Gattellari for killing the deceased was important when assessing Gattellari’s credibility and reliability. The Crown submitted that while it was true that the applicant did not have to prove a particular motive, absence of one was something that the jury could take into account when assessing Gattellari’s credibility and reliability.

The motive suggested in the appeal which was never put to him, was that Gattellari wished to remove the applicant’s litigation problems so as to free up money which could then be made available for his electrical companies. As a starting point, there was no evidentiary foundation for the existence of such a desire on Gattellari’s part at the time of the creation of the single joint criminal enterprise in March 2009. In addition, the potential problem of a shortage of money for the electrical companies did not arise until the second half of 2010. In addition, one only has to analyse the suggested motive closely to conclude that it lacked cogency, particularly when compared to the very strong evidence as to the applicant’s motive.

For the above reasons, and having reviewed the whole of the evidence, I am satisfied that this is not a case where the jury must have entertained a doubt as to the applicant’s guilt. I have concluded that on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of both offences.

The orders which I propose are:

HAMILL J: I have read the draft reasons of Hoeben CJ at CL. His Honour’s judgment makes it unnecessary for me to set out in detail the evidence adduced in the trial, particularly the evidence relating to the prosecution case on motive and the somewhat complex financial dealings of the applicant and the principal prosecution witness, Fortunato (“Lucky”) Gattellari (to whom I will refer by surname). In view of my conclusions, which are different to those of the Chief Judge, I will canvass some of the evidence of Gattellari and Senad Kaminic (another informant witness who was criminally concerned in the events), and some of the other evidence relied on by the respondent to contend - at least by inference - that, even if error (miscarriage) is established under grounds 3 to 7, no substantial miscarriage actually occurred.

Having reviewed the record of the trial, I agree with the Chief Judge that neither verdict is unreasonable or unable to be supported having regard to the evidence. The evidence of Gattellari was riddled with problems and the prosecution case depended on it to a very large extent. However, it was not the only evidence capable of implicating the applicant in the murder of Michael McGurk. There was powerful evidence of the applicant’s motive, and some of the conversations with other witnesses suggested he was involved in the killing of McGurk and the intimidation of his widow. There was also evidence from Kaminic capable of providing support for some aspects of Gattellari’s evidence while contradicting other parts in important respects. The jury was given a warning about the potential unreliability of Gattellari’s evidence. It was open to the jury, having given heed to that warning and scrutinizing the evidence with great care, to reach verdicts of guilty. In reaching that conclusion, and in employing the expression “open to the jury”, I have applied well-established principles established by the High Court in cases such M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394; 376 ALR 478. I have taken into account the failure of the prosecution to call the Safetlis and approached the evaluation of witnesses such as Gattellari and Kaminic from a position of considerable scepticism.

I agree that ground 3 ought not to be upheld. There was a dispute between the parties as to whether r 4 of the Criminal Appeal Rules (NSW) applied to this ground. No objection was taken to the Prosecutor’s address and there was no application for any direction about it. Whether or not r 4 applies, the fact that no complaint was made at the trial is relevant to the disposition of this ground. It is unnecessary to express a concluded view on the issue of whether r 4 applies in circumstances where a prosecutor’s address is said to give rise to unfairness, noting the seemingly conflicting opinions expressed by members of this Court in past cases. [1] I am inclined to agree with the proposition that “a failure by counsel to object to perceived inaccuracies in the [Prosecutor’s] address or to its allegedly extravagant or intemperate tone does not fit easily within the description of a direction, omission to direct, or decision as to the admission or rejection of evidence.” [2]

However, whatever be the correct application of r 4 to this ground, there was no miscarriage of justice arising from the relevant parts of the Prosecutor’s address.

There was no issue between the parties at the trial that Gattellari had access to large quantities of cash through a group of private companies referred to as the “electrical companies” (including a company known as Rivercorp). That fact was consistent with the case of both parties at the trial. The applicant’s case was that Gattellari had access to cash with which to pay the Safetlis. The dispute was whether such funds were provided by the applicant. The related issue was what happened to the cash money that Gattellari claimed he received from the applicant to fund the murder. The Prosecutor did not misstate the effect of the evidence in their address to the jury. While some parts of the address, considered at this distance from the atmosphere of the trial and without the nuance of the spoken word, may have had a capacity to overstate the effect of the evidence of Messrs Collis and Shipley, there was no submission that their evidence directly corroborated Gattellari’s version. Nor was it suggested that the evidence supported an inference that the cash allegedly provided by the applicant was actually deposited into the bank accounts of the electrical companies. Further, the report shown to Mr Collis demonstrated that there were large sums of (cash) money available to Gattellari. There was a selective and limited tender of the report.

Since circulating a draft of these reasons, I have had the opportunity to read the draft judgment of Bathurst CJ. I agree with his Honour’s analysis of ground 3 and, in particular, with the Chief Justice’s conclusions as to the basis of the admissibility of Mr Collis’ report on the appeal. There was no miscarriage of justice arising from the Prosecutor’s address and ground 3 should be rejected.

I have concluded that there was a miscarriage of justice as a result of the matters raised by ground 4. The evidence elicited in re-examination was not admissible. It was inadmissible both as hearsay and as opinion evidence. [3] There is no occasion to apply r 4 arising from the absence of immediate objection because of the failure of the prosecution to put the applicant and the Court on notice that it was to be adduced, and because an application to discharge the jury was made almost immediately after the evidence was adduced. The wrongful admission of the evidence constituted a miscarriage of justice.

I would also uphold ground 5. The Prosecutor’s final flourish in their cross-examination of Peter Medich created unfairness. The conflict between the evidence of Peter Medich and Loren Gattellari did not involve a contest as to whether Lucky Gattellari would implicate the applicant in the murder honestly or dishonestly. In those circumstances, for the Prosecutor to put to Peter Medich that he did not report the extortion attempt to police (to put Loren Gattellari’s approach in pejorative terms), suggested that Peter Medich knew or suspected that his father was guilty and that Peter Medich was part of an attempt to cover up his father’s involvement. There was no evidence upon which those implications could properly be based. In spite of the absence of objection by Senior Counsel for the applicant at trial, I would not refuse leave to entertain this ground under rule 4 of the Criminal Appeal Rules.

I agree with Hoeben CJ at CL that ground 6 must be rejected. The relevance of the evidence of the relationship between the applicant and Gattellari was conceded, correctly, at the trial. The trial Judge excluded the most prejudicial aspect of the evidence - that is, that Gattellari intimidated those from whom he collected debts on behalf of the applicant. The evidence that Gattellari collected debts and arranged surveillance of the applicant’s wife, on the applicant’s behalf, had a relatively high degree of probative value in explaining the nature of the relationship between the two men. That relationship was, in turn, relevant to the allegation that the applicant had sufficient trust in Gattellari to engage him to arrange the murder of McGurk. Contrary to the applicant’s submissions, any risk that the evidence may be misused, and in particular that the jury might use it to engage in tendency or bad character reasoning, was overcome by the directions provided to the jury by the trial Judge. The error in the summing up concerning the timing of the surveillance of the applicant’s wife was a matter of little moment in the overall context of the trial. The Prosecutor identified correctly the timing of that surveillance in their address to the jury and the jury requested and received a copy of the transcript.

I should record that I would not refuse leave under r 4 on the basis that the objection in this Court was formulated differently to that taken in the District Court. I would grant leave to rely on the ground given that objection was taken to the evidence. However, the evidence was admissible and any danger of unfair prejudice or misuse of the evidence was cured by the directions provided by the trial Judge.

I would uphold ground 7 on the basis that the jury should have been directed not to reason to guilt on the murder charge by way of tendency reasoning arising from the evidence and any findings in relation to count two. The failure to seek such a direction must have been an oversight on the part of counsel appearing at the trial and there was no tactical reason not to seek such a direction. I would not invoke rule 4 to prevent the applicant from relying on this ground of appeal.

The respondent did not, in terms, invoke the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW). However, as I will explain, it is appropriate to consider its application in the circumstances. Having considered the errors in the context of the whole record of the trial, I am unable to conclude that no substantial miscarriage of justice actually occurred.

I will say no more about the grounds I would reject (grounds 1, 2, 3 and 6). I agree, generally, with the respondent’s submissions in relation to those grounds and Hoeben CJ at CL has reproduced those arguments in his judgment. The reasons that follow concern the grounds I would uphold (grounds 4, 5 and 7). They also explain that, on a review of the whole of the record at the trial, including the verdicts, and consideration of the nature of the errors that occurred in the trial proceedings, I am unable to conclude that no substantial miscarriage of justice actually occurred in this case.

I would allow the appeal against conviction and order a re-trial.

Ground 4 concerns questions asked in re-examination of the witness Senad Kaminic. As the summary of evidence provided by Hoeben CJ at CL at [216] – [219] shows, Kaminic gave some evidence capable of supporting aspects of the prosecution case. However, his testimony was also relied on by the applicant because parts of his evidence contradicted important aspects of the narrative provided by Gattellari.

The impugned evidence adduced in re-examination concerned a conversation between Gattellari and Haissam Safetli. The conversation occurred in February 2009, prior to the point in time at which the prosecution alleged that the applicant was involved in a joint criminal enterprise to kill the deceased. Gattellari said he could not recall the meeting and denied that the conversation occurred at all. He said it “never happened” and was “nonsense”. Neither Bassam Safetli nor Haissam Safetli gave evidence. There was no suggestion that the applicant was present. He was in no position to challenge the terms of the conversation or to provide any alternative version of events.

Trial counsel for the applicant did not object to the evidence elicited in re-examination as the questions were asked. However, immediately after the re-examination concluded, he made an application for a discharge of the jury. That application was refused. In spite of the terms of ground 4(a), the issue is not whether the trial Judge erred in the judgment declining the discharge application, although the applicant referred to a number of issues arising from that judgment. The first question is whether there was a miscarriage of justice pursuant to s 6(1) of the Criminal Appeal Act. I have concluded that there was.

The conversation was raised in the cross-examination of Gattellari and he denied the substance of the conversation:

Based on the content of this cross-examination, it is clear that it was a reference to the conversation of which Kaminic later gave evidence. However, the questions actually asked concerned a conversation that occurred at “the court complex or a coffee shop outside”, whereas Kaminic gave evidence that the relevant conversation, where Haissam Safetli made reference to McGurk’s photograph in the Daily Telegraph, occurred at Gattellari’s house (extracted at [817] below).

In the course of Kaminic’s evidence in chief, the Prosecutor adduced evidence of a meeting at Gattellari’s house at Chipping Norton. In cross-examination it was established that the meeting allegedly took place “about the day of his birthday”, that is 3 February 2009. The meeting occurred after an occasion when Kaminic believed the applicant and Mr McGurk had a court case against each other. Hoeben CJ at CL has explained the applicant’s interest in that court case even though he was not a party to the proceedings. [4] There was general agreement that the conversation occurred, if it occurred at all, in early February of 2009. That was before the prosecution alleged that the applicant was part of, or formed, a joint criminal enterprise to murder McGurk. Kaminic gave evidence through an interpreter and his evidence was interpreted as follows:

On Monday 26 February 2018, Kaminic was cross-examined as follows:

The cross-examination continued on Tuesday, 27 February 2018 and the relevant meeting was touched upon, in the context of surveillance of McGurk and whether he would attend court, but there was no further cross-examination of significance in relation to the relevant conversation.

The Prosecutor conferred with Kaminic before embarking on re-examination on Wednesday, 28 February 2018. The re-examination included the following:

There was no suggestion in the evidence in chief that the "you" referred to in the conversation was the applicant. Nor was it suggested that “you” was used as a collective pronoun and related to Gattellari and the applicant. This was so, even though there was reference in the same conversation to Gattellari telling Kaminic that the Safetlis were to conduct surveillance on the applicant’s behalf.

There was no cross-examination as to what was in Kaminic’s mind when these things were said and no suggestion in cross-examination that Kaminic was in a position to give evidence of what Safetli intended to convey. In those circumstances, a significant part of the re-examination (the part that is italicised in the passage set out at [819]) fell outside the legitimate bounds of re-examination.

It was open to the Prosecutor to ask whether the word “you” had been emphasised in the manner apparently employed in the cross-examination. However, it was not open to ask to whom the witness understood Safetli to be referring when he said that McGurk was “causing you a lot of problems” (and, by extension, who “[had] to kill this guy”). Kaminic’s understanding of what Haissam Safetli intended to convey did not arise out of the questions asked in cross-examination: s 39(a) of the Evidence Act 1995 (NSW). For example, it was not put to Kaminic in cross-examination that when Safetli said “you” he was directing the observation to Gattellari, or was referring to Gattellari, or that Kaminic “understood” it to be a reference to Gattellari. Nor was leave sought under s 39(b).

Accordingly, the evidence was not admissible in re-examination. Assuming the evidence was admissible (which, as will be seen, it was not), it should have been adduced in the course of evidence in chief when the witness gave evidence of the conversation. The cross-examination, while emphasising the word “you”, did not invite evidence of Kaminic’s opinion or understanding of what Safetli meant or to whom he was referring.

However, the problem was more fundamental than that. The evidence was not admissible.

The question - “[W]ho did you understand Safetli to be referring to when he said ‘causing you a lot of problems’?” - called for Kaminic to provide his opinion of what was in Safetli’s mind. While the question, on its face, was directed to Kaminic’s “understanding”, any answer required the witness to speculate as to what Safetli intended to convey by use of the word “you” when it was directed to Gattellari. Alternatively, it required Kaminic to provide evidence as to his own thinking process many years earlier in circumstances where such evidence had never previously been adduced, foreshadowed or disclosed. The follow-up question - asking “why” Kaminic was of this understanding - was an invitation for the witness to undertake a circumstantial reasoning process that was properly within the province of the jury.

The applicant submitted that the evidence was not admissible and said “the [Prosecution] sought to prove what the Safetlis understood to be the nature of the unresolved problem that the deceased posed, and to whom, by adducing erroneous and inadmissible assumptions of Kaminic yet chose not to call the Safetlis” (Applicant’s Written Submissions (“AWS”) at [296]). It was put that "Kaminic’s recollection nearly ten years later (erroneous as it turned out) as to the state of legal affairs between the applicant and the deceased in February 2009 was not capable of, or admissible to prove, what possibly motivated the Safetlis in conveying what they did" (AWS at [297]). It was further submitted that "the [Prosecution] was prepared to conduct its case without calling the Safetlis on this issue and instead prove such an objective by inadmissible and unsubstantiated assumptions of Kaminic” (AWS at [305]).

The applicant also submitted (AWS at [309]):

The respondent submitted that the evidence was “relevant, admissible and properly arose out of the cross-examination” (RWS at [95]). It submitted that the evidence was admissible as an exception to the opinion rule and referred to the fact that the applicant was provided with the opportunity to further cross-examine. Finally, it was submitted that the evidence did “not have the significance contended for by the [applicant]”.

The question is properly categorised as an attempt to elicit Kaminic’s opinion and is caught by the opinion rule in s 76 of the Evidence Act. That section provides that “evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”.

Section 78 provides an exception:

The evidence did not fit either of those criteria of admissibility. Kaminic could not “see, hear or otherwise perceive” what was in Safetli’s mind: see Petch v R [2020] NSWCCA 133 at [84] – [87] and the cases discussed at [62] – [77] (Hamill J, Hoeben CJ at CL and Cavanagh J agreeing). Nor was the opinion necessary to obtain an adequate understanding of Kaminic’s perception of the matter or event (that is, the terms of the conversation): see Petch v R at [84], [86] and [88].

The respondent submitted the evidence was admissible, relied on the decision of White J (as his Honour then was) in Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379, and said that his Honour’s decision was cited with approval by the High Court in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36.

The circumstances in Connex Group v Butt were different. White J allowed evidence of a file note which provided the “gist” of a telephone conference between two people which was heard by the witness over speakerphone: at [2]. The file note included the witness’s “impressions” of what the participants to the conversation conveyed. It did not provide direct speech and the file note indicated that the witness’s handwritten notes (from which it was derived) did not “capture every word of the conversation”: at [27]. The note was tendered as evidence of the conversation. There was an objection on the basis of relevance and hearsay but this developed so that the real issue became whether the file note contained inadmissible opinion evidence. White J took the view that earlier cases which gave s 78 “a relatively narrow operation” were wrong: see [23]-[24] and the references to R v Leung and Wong (1999) 47 NSWLR 405; [1999] NSWCCA 287 at 411 – 412, Australian Securities and Investments Commission v Vines [2003] NSWSC 1237 and Guide Dog Owners’ and Friends’ Association Inc v Guide Dog Association (NSW & ACT) (1998) 154 ALR 527 at 531.

As to the admissibility of the file note, White J concluded at [21] – [22]:

The final sentence of that passage resonates in the present case. The jury in the applicant’s trial was in as good a position as Kaminic to draw any inference as to what Safetli intended to convey when he said “you”.

The High Court (French CJ, Heydon and Bell JJ) made reference to White J’s judgment in Lithgow City Council v Jackson. However, it overstates the situation to say that the decision “was cited with apparent approval”. The reference was in a footnote to [43]. [5] The footnote, which commences with a citation to the Macquarie Dictionary and its definition of “perceive”, was as follows:

As can be seen, the plurality was guarded in its reference to the reasoning in Connex Group v Butt. Their Honours did not engage with the controversy as to whether s 78 of the Evidence Act should be given a narrow or wide construction and did not determine whether an “understanding” always falls within the statutory language of “perception”. The approval of White J’s conclusion that the understanding of a conversation fell within the concept of perception was circumspect; their Honours said only that the approach did “not seem wrong when so limited.”

The judgment in Connex Group v Butt is not binding on this Court. It is also distinguishable from the circumstances of the present case. It is one thing for an impressionistic file note of the whole of a conversation to be admitted as evidence of the conversation. It is a different thing for a witness to be asked what they understood another person to mean when they used a particular word within a conversation. Once the Prosecutor clarified with Kaminic that Safetli had not emphasised the word “you” in the relevant part of the conversation, the jury was entitled to draw inferences and conclusions based on the facts as it knew or found them to be. That is particularly so in circumstances where one party to the conversation (Gattellari) denied the conversation and the other (Safetli) was not called to give evidence.

It is unnecessary to provide an opinion on the issue of whether a narrow or wide construction should be given to s 78. Rather, that section should be applied on its terms. It does not, as a general proposition, authorise the provision of an opinion by a witness as to what was in another person’s mind. That is because such an opinion is not based on what the witness “saw, heard or otherwise perceived”.

The evidence was not admissible as an exception to the opinion rule.

Section 66A of the Evidence Act provides an exception to the hearsay rule “if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind”. The “person” referred to is the maker of the representation - that is, Safetli. A contemporaneous statement by Safetli as to his “intention, knowledge or state of mind” may have been admissible under s 66A. However, Kaminic’s understanding of Safetli’s “intention, knowledge or state of mind” was not admissible under this exception to the hearsay rule.

Further, s 66A falls within Division 2 of Part 3.2 of the Evidence Act and s 62 restricts the exception to first hand hearsay. Section 62 provides:

The evidence in question went to what Safetli meant by “you” when he said “this guy is causing you problems” and “you should kill this guy”. Kaminic did not have personal knowledge of that fact. His evidence of what he thought Safetli meant was not based on things he saw, heard or otherwise perceived. The fact that the question was phrased in such a way that it appeared to inquire after Kaminic’s understanding cannot obscure the fact that the true purpose of the inquiry was to establish to whom Safetli was referring when he used the word “you”. There was no suggestion that Kaminic’s understanding of the conversation was relevant in its own right.

The evidence was not first-hand hearsay and was not, in any event, admissible under s 66A as an exception to the hearsay rule. The respondent did not submit that it was.

For completeness, there was no suggestion that the evidence may have been admissible under s 87 of the Evidence Act or the common law co-conspirators rule: see R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127, Higgins v R [2020] NSWCCA 149, Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22, Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39.

At the time of the conversation there was no relevant common purpose between Safetli and the applicant or Safetli and Gattellari. [6] The earliest the prosecution suggested the joint criminal enterprise commenced was March 2009. Accordingly, the representation was not “by the person [Safetli] in furtherance of a common purpose (whether lawful or not) that the person had with the party [the applicant] or one or more persons including the party [the applicant and Gattellari]”: see s 87(1)(c) of the Evidence Act.

No objection was taken to these questions as they were asked. However, as soon as the re-examination concluded, Senior Counsel then appearing for the applicant made an application to discharge the jury. Asked whether any objection was taken to the question, Senior Counsel responded:

Senior Counsel said the evidence:

He complained about the absence of disclosure “that there was going to be an addendum to the [prosecution] case for the first time since this man has been charged”.

The applicant submitted that r 4 of the Criminal Appeal Rules did not apply to ground 4. The respondent submitted that it applies to ground 4(b) because no objection was taken at the time the evidence was given. I accept the respondent’s submission that rule 4 is engaged in relation to ground 4(b). However, the fact that objection was taken - in the form of the application for discharge of the jury - so shortly after the evidence was given is a strong factor militating in favour of the grant of leave under rule 4. It is also relevant that no notice was given to the applicant at trial that the evidence was to be elicited in re-examination. This was despite the fact that there had been a committal, an earlier trial and a conference during which, presumably, the Prosecutor became aware of, or asked about, Kaminic’s opinion.

In some of the authorities, it has been held that to obtain leave under rule 4 the applicant must establish that “he or she has lost a real chance (or a chance fairly open) of being acquitted”: see, for example, Picken v R; R v Picken [2007] NSWCCA 319 at [20]-[21] (Mason P, Hidden and Harrison JJ agreeing), ARS v R [2011] NSWCCA 266 at [148] (Bathurst CJ, James and Johnson JJ agreeing), Greenhalgh v R [2017] NSWCCA 94 at [47]-[48] (N Adams J) and Hogg v R (2019) 101 NSWLR 524; [2019] NSWCCA 323 at [138] (Wilson J). However, in Greenhalgh Basten JA (with whom Button J agreed) emphasised at [15] – [16] “the importance of not limiting the scope and operation of a discretionary power, particularly in relation to the fairness of a criminal trial”: see his Honour’s analysis of relevant considerations and cases from [7]-[21]. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Bathurst CJ (with whom Leeming JA, RA Hulme, Hamill and N Adams JJ agreed) said at [24]-[25]:

In Hogg, White JA (with whom Wright J agreed) surveyed the authorities, including Obeid v R and concluded at [68]:

See also the analysis of r 4 undertaken by N Adams J in Decision Restricted [2020] NSWCCA 308.

The issues that arise under this ground of appeal present a good example of the undesirability of applying r 4 proscriptively. This is not a case where the issue was not ventilated at trial. To the contrary, strong if slightly tardy submissions were addressed to the trial Judge about the admissibility of the evidence and its capacity to cause prejudice and unfairness. As Basten JA stated in Greenhalgh at [14]:

In the circumstances of this case, and insofar as it is necessary, I would grant leave under r 4 to allow the applicant to rely on this ground.

There was a great deal of argument on the hearing of the appeal as to whether the matters raised under this ground constituted a “miscarriage of justice” for the purpose of s 6(1) of the Criminal Appeal Act. The respondent submitted that “the evidence of Kaminic’s understanding of the conversation does not have the significance contended for by the applicant” and “certainly did not occasion a miscarriage of justice” (RWS at [96]). The submission that there was no miscarriage of justice relied on a number of matters, including:

The applicant contended to the contrary, submitting that the evidence created incurable prejudice because it obscured “a major difficulty in [the Prosecution] case which was the possibility that the genesis of the plot to kill the deceased emanated from the Safetlis in circumstances which did not implicate the applicant” (AWS at [331]). It was submitted that the additional cross-examination provided no remedy to the wrongful admission of evidence and that the Prosecutor’s address confirmed that the additional cross-examination aggravated the prejudice. The relevant part of the Prosecutor’s address was as follows:

There was a spirited debate as to the extent to which these submissions constituted a change in the prosecution case, extended the temporal parameters of the applicant’s involvement in the joint criminal enterprise, or otherwise obscured the prosecution case that the applicant was not involved in the plan to murder McGurk until, at the earliest, March 2009.

None of these matters, individually or in combination, are determinative of whether there was a “miscarriage of justice” for the purpose of s 6(1) of the Criminal Appeal Act. Rather, they are, or may be, relevant to the question of whether there was a “substantial miscarriage of justice” for the purpose of the application of the proviso to s 6(1).

In GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037 the High Court said (with relevant footnotes incorporated as footnotes to this judgment):

In Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, Kiefel CJ, Bell, Keane and Gordon JJ said at [12]:

It follows that the admission of the inadmissible evidence of what Kaminic understood Safetli to mean when he told Gattellari that “[McGurk] is causing you a lot of problems” constituted a miscarriage of justice under the third limb of s 6(1) of the Criminal Appeal Act. The Prosecutor’s submission that “we certainly know that McGurk was causing the accused a lot of problems” highlighted and exacerbated the problem. The remaining arguments of the parties will be considered in the context of whether the proviso to s 6(1) should be applied - that is, whether I am satisfied that “no substantial miscarriage of justice has actually occurred”.

Ground 5 concerns questions asked by the Prosecutor in cross-examination of the applicant’s son, Peter Medich.

Gattellari's son, Loren Gattellari, was called in the prosecution case. He gave evidence of a conversation with Peter Medich that occurred before Gattellari commenced fully to co-operate with police. A demand was made for the applicant to fund Gattellari’s legal expenses estimated to be in the order of $1 million. Loren told Peter Medich that unless the applicant assisted with the payment of his father’s legal fees, Gattellari may cooperate with the police by nominating the applicant as the person who funded the contract killing of McGurk.

Peter Medich was called in the defence case to give evidence of the same conversation.

While there were some variations in the evidence concerning the precise detail of the conversation, there was no significant difference in the substance of the discussion. Fundamentally, each gave evidence that the conversation involved assertions that investigating police were putting pressure on Gattellari to nominate the applicant as the person behind the contract killing, that Gattellari's legal costs were substantial, that he needed money from the applicant to fund his defence, and that if money was not forthcoming he would cooperate with the police.

The relevance of this evidence seemed to lie in its capacity to undermine Lucky Gattellari’s credibility. The prosecution, no doubt aware that this attack on its principal witness’s credibility was to come, called Loren Gattellari to confront the attack pre-emptively and, perhaps, in accordance with its duty of fairness. In any event, there was no issue between the parties that the evidence was relevant, at least, to the issue of Gattellari's credibility. It was relevant to that issue as it demonstrated both a capacity to engage in dishonest and potentially criminal conduct (including extortion and blackmail) and suggested that Gattellari had a motive to implicate the applicant in the murder.

Ground 5 concerns the following two questions asked by the Prosecutor in cross-examining Peter Medich:

I accept the applicant’s submission that these questions were inappropriate and inadmissible because they were predicated on an assumption of the applicant’s guilt or involvement in the murder. The questions imported to the applicant’s son knowledge of his father's guilt with the consequent suggestion that he was involved in a cover-up which would constitute a criminal offence; [13] [however, ]there was no evidence that Peter Medich knew or believed his father was the person behind the killing of McGurk.

The applicant submitted that the cross-examination involved an “advocate’s trick” and that this was contrary to the rules governing the Prosecutor’s conduct. [14] It was submitted at [347] in the applicant’s written submissions:

The respondent submitted that there was no impropriety in this cross-examination. It was submitted that there were differences between the evidence given by the two sons as to the precise details of the conversations and that the cross-examination went to explore those differences and to undermine Peter Medich’s credibility. It was submitted in writing (at [109]) that:

However, on the hearing of the appeal, the respondent conceded that nowhere in Loren Gattellari’s evidence were the words “truth” or “truthfulness” employed. [17] Similarly, Peter Medich did not say that the conversation expressly or impliedly suggested that, in the absence of funding for the legal costs, Gattellari would falsely implicate the applicant in the murder. There was a dispute as to the precise terms of the conversation but resolution of that dispute did not require investigation of what Peter Medich believed the truth to be in respect of his father’s involvement. There was also other evidence, from the witness Robert McCarthy, of Gattellari’s attempt to get the applicant to pay his legal fees because he felt “hard done by” [18] but, again, that evidence did not open up the question of Peter Medich’s knowledge of his father’s involvement. The respondent submitted that the question of the truth or falsity of the allegations Gattellari might make was relevant “by implication”. [19]

The respondent set out a number of pieces of Loren Gattellari's evidence in an attempt to justify this submission. This included:

These passages from the evidence of Loren Gattellari did not lay the foundation for, or justify, the final questions put to Peter Medich in cross-examination. To the contrary, they demonstrate that the truth or falsity of the allegations that Gattellari might make against the applicant was not the central issue between the witnesses. One issue was whether the word “blackmail” was used. An allegation of blackmail does not turn on whether the demand is based on a true (or false) accusation of wrongdoing.

It would have been obvious to the jury that the two witnesses were partisan and that each supported their own father. There was also cross-examination concerning conversations between Peter Medich and the applicant, suggesting that Peter Medich had some knowledge of the events and characters arrested in relation to the murder. However, it was not put directly to Peter Medich that he was involved in a cover up and complicit in the murder or its aftermath. No doubt, that was because the evidence did not support such cross-examination.

The two impugned questions asked by the Prosecutor were not supported by the evidence given by Loren Gattellari. Further, Matthew Crockett also gave evidence of the conversation. Like Loren Gattellari, he denied that Peter Medich said words to the effect that Gattellari was trying to blackmail the applicant. He gave no evidence that the conversations implied or suggested, one way or another, the truthfulness of the information or evidence that Gattellari may provide to the police if the demand for funding of lawyers was not acceded to.

Furthermore, the cross-examination of Peter Medich, putting to him that he did not provide a statement to police about the alleged blackmail attempt, failed to recognise the uncontested evidence that Peter Medich advised his lawyers of the approach by Loren Gattellari on the day of the conversation. He gave evidence that he believed his lawyer had notified police of the incident.

In all of the circumstances the cross-examination undertaken by the Prosecutor was unfair. The two questions impugned by the ground ought not to have been asked. When they were asked, objection should have been taken by Senior Counsel for the applicant. Had an objection been taken, it is safe to assume the trial Judge would have rejected the questions. They were not relevant because there was no evidence to suggest that the witness had any direct knowledge of whether the applicant was involved in the murder and his opinion or belief could not rationally affect a fact in issue in the trial. Accordingly, Peter Medich could not know whether Gattellari would be telling the truth or otherwise if he made a statement to police implicating the applicant.

I would not invoke r 4 of the Criminal Appeal Rules to prevent the applicant from raising this ground. There was no conceivable tactical advantage in failing to object to these questions and the applicant ought not to be barred from pursuing this ground on the basis that he is bound by the conduct of the barrister who conducted his trial. Lawyers, even senior ones, make mistakes. Once again, based on the authority in GBF v The Queen, the wrongful admission of evidence constituted a miscarriage of justice.

However, it remains to be considered whether the questions and answers were of such significance that they led to a “substantial miscarriage of justice”. The failure to take objection is a relevant consideration because it may suggest that in the atmosphere of the trial, this was not a matter of great moment. A further relevant consideration is that, while counsel addressed the jury on the substance of the conversation and the various conflicts in the evidence, the impugned questions and answers were not referred to in counsels’ addresses, nor in the summing up.

Subject to the application of the proviso, I would uphold this ground.

The murder of McGurk occurred on 3 September 2009. The intimidation of his wife occurred almost a year later on 8 August 2010. This ground of appeal is largely concerned with evidence of matters and events in the period leading up to the intimidation offence. There was no objection to this evidence, no application for its use to be limited to proof of the second count, and no application that the jury be warned not to engage tendency reasoning. Rule 4 applies to each part of the ground as formulated and set out above.

The applicant summarised the evidence in question as follows: [20]

In spite of the length of time between the offences, at all times during the trial (and appeal) the case was conducted on the basis that there was a single joint criminal enterprise which encompassed both the killing of McGurk and the intimidation of his wife. The trial Judge directed the jury:

His Honour reiterated the position later in the summing up:

The respondent submitted that because the trial was conducted in this way, the evidence that is subject to this ground of appeal (at [884]) was admissible in proof of both counts on the indictment. Large parts of the evidence were admissible in relation to Count 1 because they were able to establish the applicant’s strong motivation to recover the money and property that he believed was acquired wrongfully from him by the deceased (and held by McGurk’s estate after the murder). The jury was entitled to consider that, if the accused had that motivation in mid-2010, he may have had that same motive in the earlier period leading up to McGurk’s murder in 2009. According to authority in this Court, that was not evidence of a tendency to have a particular state of mind; rather, it was evidence of him in fact having that state of mind. [23] Similarly, some of the recorded conversations - including, and in particular, the reference to “fucking her off like McGurk”, whether that be a reference to the applicant’s wife or Mrs McGurk [24] - were able to be used by the jury as evidence of a consciousness of guilt in relation to the murder of McGurk. While not entirely analogous to the circumstances of Elomar and Ors v R, the same general principles applied. [25] In that case, the Court said:

Based on those observations, and contrary to the applicant’s submission, the evidence was admissible in proof of the murder charge in a manner other than by tendency reasoning.

However, the fact that the evidence was capable of being used in a legitimate way, and other than by resort to tendency reasoning, is not the end of the matter. The evidence was also capable of misuse. That is, the jury may have reasoned backwards, or in a circular way, from a finding (to no particular standard) that the applicant was involved in the intimidation of Mrs McGurk and with the unsavoury characters directly involved in the approach to her home on 8 August 2010, to a conclusion that he was also party to the joint criminal enterprise to murder McGurk. That process could have, and most likely would have, involved tendency reasoning.

In those circumstances, the jury ought to have been directed as to the way the evidence could be used legitimately and, more importantly, warned against any forbidden process of reasoning, such as tendency reasoning.

The jury was directed, correctly, that each charge had to be considered separately. It was also directed, correctly, that a finding of not guilty on either count should be taken into account when considering the other count. However, the jury was not directed as to the way in which a verdict of guilty on one count could be used in resolving the other count. As the applicant submitted, [26] the jury ought to have been directed that:

The fact that evidence may be admitted for a legitimate (non-tendency) purpose, or the fact that two related counts are subject to a joint trial, does not obviate the need to warn against tendency reasoning in appropriate cases. Such directions are common in cases where evidence is admitted to establish a relationship or to place the events in a true context. [27] The trial Judge provided such directions in the present case to ensure the evidence of the applicant’s relationship with Gattellari, and the debt collecting activity, was not used as tendency or bad character evidence. [28]

In BRS v The Queen [29] the appellant was a schoolteacher charged with sexual offences against a student. The complainant gave evidence that a towel and lubricant were present in the appellant’s bedroom at the time of the offences. Another schoolboy was permitted to give evidence that the appellant asked him to masturbate in his bedroom using a towel and lubricant. The evidence was not relied on to prove a propensity on the appellant’s part to indecently assault students. Rather, it was admitted to support the account of the complainant that there was a towel and lubricant in the bedroom and also to rebut the appellant’s case that he was a person of good character. Four members of the High Court held that the trial miscarried because there was no direction prohibiting the jury from using the evidence as propensity evidence: at 294-5 (Toohey J), 301-303 (Gaudron J), 304-305, 310 (McHugh J), 330, 332 (Kirby J). McHugh J at 305, said that the jury must receive “careful directions” to prohibit propensity reasoning in a case where the evidence was not admitted for that purpose. His Honour spoke about that prohibited reasoning in the final paragraph of 304:

In R v Walters [2002] NSWCCA 291 the appellant was convicted of 10 counts of fraud on the Commonwealth. The trials of each charge were run together and the offences had a number of similar features. The evidence of each count was admissible in relation to the other counts to establish knowledge and it was held at [48] “the evidence in relation to the early counts was highly relevant and highly probative of intention in relation to the later counts”. The evidence was not admitted as tendency evidence. A ground of appeal complaining that the jury was not directed against tendency reasoning was rejected. Hodgson JA (with whom Studdert and Dowd JJ agreed) concluded:

In the present case, the jury was directed to consider each count separately and was also directed that it should take an acquittal on one count into account in relation to the other. However, there was no risk in this case that an “anti-tendency” direction would suggest a forbidden process of reasoning that the jury would find persuasive. So much is clear from the directions relating to the evidence of the relationship between the applicant and Gattellari. Those directions made it clear to the jury the way in which the evidence could be used and cautioned the jury against using the evidence for a tendency purpose. The jury was directed as follows:

I accept the applicant’s submission that similar directions ought to have been given in relation to the evidence of the events leading up to the intimidation of Mrs McGurk (Count 2) and to any finding that the conduct alleged in the second count was established. I am unable to accept the respondent’s submission that the warning was not necessary because of the way the trial was conducted or the suggestion that direction was not warranted because the tendency arose from another count on the indictment. [31]

It was open to the jury to find that the circumstantial case against the applicant was stronger in relation to Count 2 and to use the evidence that led to such a finding to conclude that the applicant had relationships with criminals and was prepared to use those contacts in order to act unlawfully to obtain property interests and enforce debts to which he believed he was entitled. Using that reasoning in proof of the murder charge (Count 1) would have resulted in tendency reasoning. In the absence of notice under s 97(1)(a) of the Evidence Act the evidence was not admissible for that purpose. Section 95 of the Evidence Act provides:

Accordingly, assuming the evidence (or parts of it) was admissible for the purpose of establishing the applicant’s ongoing involvement in a single joint criminal enterprise, it was not admissible to be used as tendency evidence. The jury should have been directed accordingly. A prohibition against such reasoning is of such significance that I would not invoke r 4 to prevent the applicant from advancing this ground. I can envisage no tactical advantage to the applicant that would motivate Senior Counsel who appeared at the trial to fail to raise the matter as a deliberate choice. It appears to have been an oversight.

As with grounds 4 and 5, the question becomes whether the proviso to s 6(1) of the Criminal Appeal Act should be applied. That is, whether the Court is satisfied that the failure to provide the direction, either by itself or in combination with the errors established under grounds 4 and 5, did not give rise to a substantial miscarriage of justice.

Section 6(1) of the Criminal Appeal Act provides that an appeal is to be allowed if “on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal”. The matters raised under grounds 4, 5 and 7 meant that the applicant did not have a trial according to law. Those matters gave rise to a miscarriage of justice: GBF v The Queen [2020] HCA 40 at [24]. [32] The proviso to s 6(1) is in the following terms:

The respondent did not raise the proviso in its written submissions. In both written and oral submissions, the respondent argued that the grounds of appeal asserting specific error (grounds 3-7) should be rejected and that there was no miscarriage of justice arising from the matters raised under those grounds.

On the oral hearing, the respondent submitted:

These submissions were made on 20 May 2020, prior to the judgment of the High Court in GBF v The Queen which was handed down on 4 November 2020. Many of the submissions called in aid r 4 of the Criminal Appeal Rules. Others contended that there was no “miscarriage of justice” because of the manner in which the trial was conducted or because the things raised by the applicant under the specific grounds of appeal involved what were submitted to be relatively minor matters. Based on the decision in GBF, these matters do not change the character of the errors established under grounds 4, 5 and 7. In other words, there was a miscarriage of justice under s 6(1) of the Criminal Appeal Act. In the circumstances, and in spite of the lack of submissions on the issue, it is appropriate to explain why I would not apply the proviso and dismiss the appeal.

The competing submissions of the parties in relation to whether the verdicts were unreasonable or unable to be supported having regard to the evidence provide a helpful entry point to the question of whether, notwithstanding the errors established by the applicant, this Court “may” dismiss the appeal on the basis that no substantial miscarriage of justice actually occurred. The content of that question has been subject to a dizzying amount of commentary and case law over the last half century or so. [34]

In spite of the approach of some intermediate appellate courts to the High Court’s judgment in Weiss v The Queen, [35] the common form proviso does not authorise an intermediate appellate court to usurp the constitutional role of the jury. [36] As Deane J, dissenting in the outcome, said in Wilde v The Queen:

Gaudron J made similar observations:

The majority in Wilde v The Queen (Brennan, Dawson and Toohey JJ) adopted the existing authorities going back to Mraz v The Queen [39] :

Their Honours went on to say, by reference to the observations of Gibbs CJ in Quartermaine v The Queen: [41]

In Weiss v The Queen the High Court essentially rejected the “lost chance of acquittal” formulation in favour of an approach based strictly on the statutory language. It held that "[n]o single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given": Weiss v The Queen at [44]. Statements such as whether conviction is inevitable or whether the appellant lost a fair chance of acquittal must not "mask the nature of the appellate court's task" or become substitutes for the statutory language: Weiss v The Queen at [32]-[33]. The Court said:

The Court went on to explain:

The Court in Weiss v The Queen stressed that the appellate court should not speculate on what the jury would have done or what a hypothetical jury may do.

In Baiada Poultry Pty Ltd v The Queen an important aspect of Weiss was clarified:

In Kalbasi v Western Australia, Kiefel CJ, Bell, Keane and Gordon JJ rejected a submission that Weiss should be “qualified or overruled”. Their Honours referred to “the notorious difficulties associated with the ‘lost chance of acquittal’ formulation”. As to the application of Weiss v The Queen their Honours said:

In Lane v The Queen Kiefel CJ, Bell, Keane and Edelman JJ said:

Whether there has been a “substantial miscarriage of justice” in a case where a trial has miscarried because of the wrongful admission of evidence, a misdirection (or failure to provide a proper direction), or other error of law, is a question of judgment. That question must be answered by reference to the nature of the error (or errors) that pervaded the trial considered against, or by reference to, the admissible evidence adduced by the prosecution to prove the charge levelled against the accused person.

The prosecution case against the applicant was strong. However, it was very dependent on the evidence of Gattellari. Gattellari’s evidence was dubious and unimpressive and could not be accepted without significant support in the other evidence. There was support to be found in the prosecution case but I cannot conclude, at this distance from the atmosphere of the trial, that the combination of errors that impacted on the fairness of the applicant’s trial did not result in a substantial miscarriage of justice. Even allowing for the other inculpatory evidence called in the prosecution case, the evidence of the applicant instructing Gattellari to arrange the murder and the intimidation of the deceased’s wife came solely from Gattellari. His credibility was critical and was subject to a powerful attack. The authorities emphasise that where the credibility of a particular witness or witnesses is central to the outcome, the proviso will less readily be engaged by a court of criminal appeal. [45] In such cases, Weiss did “not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction”. [46]

I have considered the whole of the evidence adduced at the trial, a deal of which has been referred to by the Chief Judge at Common Law and was summarised in the respondent’s submissions.

The prosecution adduced powerful evidence of motive and what Senior Counsel for the applicant described as a case of “cui bono”. This evidence came from a variety of sources and much of it was not, and could not be, disputed. The two men were business associates and money lenders. They had fallen out over substantial sums of money which, to oversimplify the situation, the deceased had effectively defrauded from the applicant by misusing millions of dollars to purchase a home or liquidate debt over real estate. There was litigation between the men and the applicant had been unsuccessful in obtaining favourable outcomes at court. There was evidence that the deceased was responsible for, and had been charged with, a “fire-bombing” of property associated with the applicant and that the applicant suspected his involvement in a car accident in the months leading up to the killing. The animosity between the two men was mutual. It was established by evidence from a range of witnesses, court documents and agreed facts. Paul Mathieson, an associate of both the applicant and McGurk, said at one stage the deceased was “extremely agitated” and said he “wanted to bring [the applicant] down”. The prosecution case was that by killing McGurk and threatening his wife, the applicant would benefit if Mrs McGurk succumbed to the threats and intimidation by repaying the large debt owed by the deceased’s estate to the applicant.

There was also evidence, independent of Gattellari, that the applicant made implied and explicit threats against the deceased and implied admissions of his involvement in the homicide. There was evidence, including a number of recorded telephone conversations, in which the applicant demonstrated an ongoing frustration with the failure of legal attempts to recover his money.

Mathieson gave evidence that the applicant told him in a telephone call that he had been “conned [by McGurk]” and “I don’t want to say too much over the telephone, but I will fix him up”. Subsequently, at a meeting in New Zealand on about 15 May 2009, the applicant said, “he wanted revenge for what McGurk had done to him”. Mathieson also gave evidence that the applicant said of McGurk:

Mathieson said the applicant was “incredibly angry… very, very angry, but very, very serious.” In cross-examination, the witness volunteered that the applicant also said “He won’t be alive for much longer”. He agreed that this direct threat was not in his original statement. Mathieson was subject to a strong challenge in cross-examination. It was put to him that he was motivated to lie about the applicant because he held him responsible for the loss of a “very, very large sum of money” as a result of the failed Amazing Loans venture. The witness had something of an outburst when asked one question in re-examination causing the trial judge to intervene:

Mathieson said in his evidence in chief that Tim Alford and Andrew Howard were present at the time of some of the threats. However, Alford was not called to give evidence and Howard gave evidence in the defence case that no such comments were made. Howard was cross-examined, in particular about evidence he gave at the NSW Crime Commission, some recorded conversations and the fact that he declined to make a statement to the police. He agreed that the relationship between the applicant and McGurk had completely broken down and that the applicant was incurring significant legal costs as a result of the dispute. The applicant would call the deceased a “fuckwit” and a “fucking arsehole”. However, Howard maintained his denials that the threats alleged by Mathieson were made in his presence.

Kaminic gave evidence that, over lunch at a restaurant in Leichhardt, the applicant said, “I’ve told a solicitor if I had a gun, I would kill him”. Kaminic assumed that this was a reference to the deceased and agreed that Howard was (or may have been) present at the lunch.

Howard denied that this was said in his presence. Kevin Munro was the applicant’s solicitor and was called in the defence case. He gave the following evidence:

In their closing address the Prosecutor submitted that the “accused had many solicitors, Kevin Munro was one of the accused solicitors” and “the evidence is unclear precisely which solicitor it was said to”. However, no solicitor was called to give evidence in support of Kaminic’s account of this conversation.

Matthew Crockett gave evidence of an implied admission to the murder made by the applicant at a lunch in 2010. He said the applicant had a heated telephone conversation with his wife (Odetta) and returned to the table:

In cross-examination, Crockett said that he was “certain” that Lucky Gattellari was at the lunch. Taken to his statement, Crockett said “Lucky told Ron to ‘Shh’” and “got up then and checked around the corner”. Gattellari gave no evidence of this conversation or of taking the actions alleged by Crockett. Crockett also said that Howard was present at the lunch. Howard denied that he heard such a comment although he conceded in cross-examination the self-evident possibility that the comment may have been made but that he did not hear it.

The evidence of these threats and implied admissions was (and is) capable of providing support to the prosecution case. However, each was disputed and none were supported by other witnesses said to be present at the time of the conversation. The witnesses who gave the evidence were subject to substantial attacks on their objectivity and credibility.

One matter upon which the applicant placed particular reliance was the absence of supporting evidence in relation to the cash payments allegedly made by the applicant to Gattellari as “enterprise money”, that is money with which to pay the killer engaged by Gattellari. This matter, and the detail of the evidence, has been dealt with by Hoeben CJ at CL in the context of grounds 1, 2 and 3. I will not repeat that analysis other than to make some brief observations.

Gattellari’s evidence on the issue was inconsistent and uncertain. For example, at one stage he said that he was given $250,000 in cash and gave part of this to Kaminic to pass on to the Safetlis and put the rest in his safe. However, in cross-examination he said that the money given to Kaminic was “money taken out of the [electrical] companies”. He gave inconsistent evidence as to the amount of money actually paid to the Safetlis and the source of that money. As the respondent submitted, the evidence of the accounting and business practices of the electrical companies allowed for the possibility that the money had passed through the accounts of the companies and that the many cash cheques drawn by or on behalf of Gattellari may have been used to pay the Safetlis and fund the murder and intimidation.

However, the applicant is correct that the voluminous evidence concerning the running of the companies and their unorthodox accounting practices did not establish the deposit of cash into the companies that was inferred by Gattellari’s account of what actually happened. To put it bluntly, while there was plenty of evidence of Gattellari taking cash out of the electrical companies’ accounts (usually in amounts of $10,000), there was no evidence of the cash allegedly provided by the applicant going into those accounts. One explanation, relied on by the respondent, is that Gattellari’s evidence was not that the cash was actually deposited but that he used it otherwise for company purposes and then withdrew the cash from the accounts. While that explanation was open on the evidence, there was no clear evidence that this is what happened.

Equally, while Kaminic provided some very general support of the meetings and occasions when the applicant allegedly provided the “enterprise money” to Gattellari, in other respects his evidence was inconsistent with Gattellari’s version of events. Gattellari said that he gave Kaminic $45,000 in cash to provide to the Safetlis while Kaminic said it was Gattellari who handed a bag to the Safetlis and told him it contained $50,000. Gattellari said the first payment of $250,000 cash by the applicant took place in front of Kaminic while Kaminic gave no evidence capable of supporting that account. Kaminic gave no evidence that he witnessed the applicant provide Gattellari with cash at any relevant time. Similar inconsistencies between the witnesses arose with respect to the second payment of $250,000. For example, Gattellari gave evidence that the amount was received in “exactly the same way as the first [payment]”, that is, in cash, whereas Kaminic’s recollection was that he collected a cheque for $250,000 from the applicant’s office and deposited the amount at a nearby Commonwealth Bank branch.

Gattellari gave evidence that there was “a full page of payments made to the Safetlis in my diary and I have no idea what happened to it”. He said the diary was seized by police and that he had “not seen that full page since I was arrested.” He said the police showed him “that paper” later but “it was not a whole piece of paper” and “appeared to have been cut”. Police officers denied that they tampered with the evidence.

These and other inconsistencies in the evidence about the cash payments must be considered in conjunction with the failure of the prosecution to call the Safetlis at the trial. Similarly, the company secretary (Halena Kmita) who was one of the people to whom Gattellari said he gave the cash was not called to give evidence.

There was no direct evidence that the applicant had access to cash in the sum of $500,000 and $600,000 at the time Gattellari claimed to have obtained the “enterprise money” from him. However, there was a great deal of evidence of the unusual business practices of the company and witnesses, including the accountant Kim Shipley, gave evidence of large sums of cash money being accessed by Gattellari through the electrical companies. A search of the applicant’s office secured evidence of transactions in the sum of transfers of $200,000 and $100,000 from “Ron Medich Properties” to “Elite Cranes” in May 2010. There were telephone intercepts between the applicant and a Matt Thomas in May and September 2010. In those recordings the applicant talked about those (and/or other) transfers, however this evidence post-dated the relevant cash payments, did not implicate the applicant in the murder plot and did not support Gattellari’s account of the cash payments.

The applicant also relied on the contradictory accounts concerning when and where the applicant solicited Gattellari to organise the murder. Gattellari’s evidence was vague as to when the solicitation took place, saying at one point that it “would have been three to six months [before the murder]”. That placed the solicitation at some time between March and June of 2009. However, Sundip Ghedia, Gattellari’s former solicitor, gave evidence based on a file note he made in the course of a conference with Gattellari on 18 October 2010. That file note suggested that the solicitation took place in the applicant’s “office new down the road” in Leichhardt. Gattellari was recalled after Ghedia gave evidence. He denied parts of the contents of the file note and, at times, seemed not to remember the conference saying, “I don’t remember any of it” and “I don’t know what you’re talking about”. Later he gave the following evidence:

Bruno Nesci and Ciro Romano were the landlords of the “new offices”. By reference to the tenancy agreement, they said the lease commenced on 1 September 2009. This evidence was not disputed. The prosecution’s position was that Gattellari must have been mistaken about the location of the solicitation and confused the critical meeting with the applicant with subsequent meetings held at the new offices.

Ghedia’s file note also suggested that Gattellari told him that Kaminic was present at the meeting. Kaminic gave no evidence to suggest he was present and no evidence that he ever heard the applicant solicit Gattellari to carry out the murder. He said that Gattellari told him things after some of the meetings that he took to be a reference to the applicant wanting McGurk to be killed.

Kaminic gave a deal of hearsay evidence (presumably admitted under the co-conspirator’s rule and s 87 of the Evidence Act) capable of providing support for Gattellari’s allegation that the applicant was behind the murder. To take one example, Kaminic gave evidence that after one meeting between Gattellari and the applicant, during which Kaminic waited outside, he had a conversation with Gattellari:

This kind of evidence given by Kaminic was the strongest evidence capable of supporting Gattellari’s account on the key components of the prosecution case against the applicant. It was provided by an indemnified witness, was hearsay evidence and its source was Gattellari himself.

In its written submission, the prosecution provided a catalogue of 19 matters whereby it was said “Kaminic’s evidence provided significant support for Gattellari’s evidence”. [47] For the most part, those matters corroborated the actions of Gattellari - such as proving the contact he had with the Safetlis and the payments of money to those men. However, insofar as they implicated the applicant, they constituted evidence of things Gattellari told Kaminic or evidence establishing the close relationship between the men. In other respects, the evidence of the two men was inconsistent, particularly in relation to detail, and Kaminic failed to provide support for Gattellari’s evidence on matters that one might expect him to remember.

The respondent also relied on evidence of Gattellari’s approach to Ronald Mason in an attempt to find somebody other than the Safetli brothers to carry out the murder. Gattellari said Mason introduced him to a Danny Landini and there was a meeting between Landini, Kaminic and Haissam Safetli. Gattellari said “[Kaminic] reported back to me as to what happened” and that Landini was asking for “$200,000 upfront”. Gattellari said he told “Senad” to “forget about Mr Landini”. Kaminic was cross-examined about the meeting with Landini. He agreed that he went to a club in Malabar “because Gattellari told [him] to go there”. However, he denied that he met with Landini. He did not give evidence of reporting back to Gattellari or of any further conversation about whether Landini would be engaged.

Ronald Mason gave evidence of his dealings with Gattellari. He said that Gattellari asked him at a lunch whether he knew anybody who would be prepared to kill someone. He said that the applicant was present, then agreed he may have been mistaken about that and, in re-examination, said “I assumed he was there”. He understood that Gattellari was “working for Ron” and said that Gattellari told him the target “was costing Ron $100,000 a week”. Gattellari subsequently asked Mason a number of times if he had found anybody and that “it got to the stage where I was threatened with my own life, I thought, so I knew somebody that’d probably maybe do the job”. That led to the introduction of Gattellari to Landini. Mason agreed he later found out that “Mr Landini himself was not interested in doing the job”. In cross-examination, Mason said Landini was married to his (Mason’s) daughter and that his “reputation” was as a “hit man”. He agreed that he feared Gattellari and thought Gattellari may “knock” (that is, kill) him. Mason told nobody about these things until he was called to the NSW Crime Commission and made an induced statement. He said he remained silent because of his fear of Gattellari.

There was a deal of other evidence at the trial of Gattellari’s dishonest and intimidating disposition. For example, Shipley said “Gattellari wasn’t someone you complained to” and that “I don’t believe there was any alternative but for me to remain a director of the company”. Shipley also gave evidence that Gattellari said “You’ll be here as long as we determine you’re going to be here and you might leave in your coffin”. He said he heard Gattellari threatening other people over the telephone and gave evidence:

Other witnesses, including Mason, gave evidence to a similar effect. Specifically, Howard gave evidence that Gattellari had said something to him about having “a list of people” and told him to “keep out of his business”. Gattellari allegedly said to Howard that he “had a list of people that he would be dealing with if he ever found out he had a terminal disease and I was on that list”.

There was also a body of evidence concerning two attempts by Gattellari to extort money from the applicant by offering to refuse to give evidence. This resulted in a number of people being charged with conspiracy to defraud the applicant.

The respondent, at trial and on appeal, relied on evidence that Gattellari had no independent motive to murder McGurk. However, this evidence came largely from Gattellari himself who said he hardly knew the deceased and had only dealt with him a few times. Other witnesses, like Shipley and Crockett, said they were unaware of any problems between Gattellari and the deceased, but this did not positively establish that there was no such problem. The evidence established that Gattellari’s interests were closely aligned with those of the applicant; in fact the applicant appeared to have been something of a meal ticket to Gattellari and other members of Gattellari’s family over a number of years. It is correct, as the respondent asserts, that it was not put to Gattellari at the trial that he had some independent motive. Similarly, there was no evidence of any other person having a motive for murder. However, it was not for the applicant to establish a motive in somebody else and proof of the negative (that nobody else was shown to have a motive) does not establish the positive (that the applicant was the only person with a motive to murder McGurk).

The strong evidence of motive and animosity, and the absence of evidence of a motive in others, was an important part of the prosecution case, but it could only go so far in providing support for the evidence of Gattellari that the applicant instructed him to organise the murder.

The respondent also relied on evidence of Juan Daniel Costa Neyra, who was approached by Gattellari to carry out the intimidation of Mrs McGurk. He said Gattellari told him to tell the victim to “pay or return the money back your fucking husband stole”. Neyra said he never intended to do what Gattellari told him to do. He said that Gattellari told him there was lots of money involved and when reminded of what he said in his police statement he agreed Gattellari said he wanted the message to be delivered while he was in China and that “the message was for someone with a lot of money” (AB 2715). The applicant was never identified as the person behind Gattellari’s approach to Neyra but the prosecution relied on inferences to be drawn from the reference to what “your husband stole” and the person behind the threat being a person “with a lot of money”.

Similarly, the prosecution relied on the words used by Witness A (who was a registered informer and did not give evidence at the trial) to Mrs McGurk on the day of intimidation; for example “Don’t be a conman like your husband.” and “pay your husband’s debts”. Those words were recorded by a listening device with the cooperation of Witness A. The conversations between Witness A and Haissam Safetli surrounding the intimidation offence were recorded by the same listening device. The inference the prosecution sought to draw was that the debt referred to was the debt owed by McGurk to the applicant.

There was also a body of electronically recorded evidence including telephone intercepts in which the applicant was a participant. These involved conversations leading up to and shortly after the intimidation of Mrs McGurk. None of these conversations contained any direct admissions on the part of the applicant. They showed that the applicant held Mrs McGurk equally responsible for the large debt that he believed was owed by her husband’s estate. The applicant said she was “complicit” and would be “implicated in [the] fraud herself”. He complained about the legal fees he was incurring and discussed strategies to place pressure on Mrs McGurk to pay the money back. A number of other telephone conversations, some initiated by Safetli when he was co-operating with the police, positively implicated Gattellari in the offences but did not inculpate the applicant. They were capable of sinister inferences, but other inferences were available.

The most incriminating aspect of this evidence concerned a telephone conversation on 13 August 2010 between the applicant and Howard when considered against the timing of the intimidation and a trip that the applicant and Gattellari took to China. Gattellari gave evidence that the trip to China was intended to provide some kind of alibi, or cover up, to distance him and the applicant from the intimidation offence. Immigration records showed that both men travelled to Hong Kong between 6 and 12 August 2010. The day after their return the applicant instructed Howard to contact Mrs McGurk’s solicitor to arrange a meeting “to know where she stands.” This conversation followed the trip to China, was only days after the intimidation and must be considered in the context of various intercepted telephone calls in the weeks earlier. As the respondent submitted one available inference was that the applicant was seeking “to gauge the effects of the intimidation which had been perpetrated upon Mrs McGurk a few days earlier” (RWS at [372]).

Considering the evidence as a whole, the prosecution case against the applicant was a strong one. However, as the trial Judge directed the jury, it relied largely on an acceptance of Gattellari’s evidence. His Honour told the jury:

Earlier in the summing up, the trial Judge warned the jury about the potential unreliability of the evidence of both Gattellari and Kaminic, each of whom received a considerable benefit by co-operating with the authorities and giving evidence against the applicant. Gattellari received a substantial reduction in his sentence, including a 5% discount for co-operating with the police and a 30% discount for his undertaking to give evidence. His total discount, including the plea of guilty, was 60% and resulted in a sentence for murder of 10 years with a non-parole period of 7 years and 6 months. Kaminic received an indemnity from prosecution for (accessory before the fact to) murder and a total discount of 50% from his sentence for his plea of guilty to accessory after and his assistance. He was sentenced to 4 years and 6 months with a non-parole period of 2 years and 6 months.

There were substantial issues at the trial about the credibility of these and other witnesses. Those other witnesses included Paul Mathieson, Matthew Crockett, Bryan Collis and Andrew Howard.

The relevance of these matters to the appropriateness of applying the proviso is obvious. Even allowing for the substantial body of undisputed and documentary evidence, the case was to a very large degree dependent on an assessment of the credibility of the witnesses called on both sides. As explained above, the proviso will less readily be invoked in such cases. [49] The combination of errors in the trial proceedings must be considered as a whole.

In relation to ground 4, I am unable to accept that affording the applicant the opportunity to undertake further cross-examination had any impact on remedying the problem created by the introduction of inadmissible and prejudicial evidence in the re-examination of Kaminic. Putting aside the discretion to discharge the jury, the only viable solution at that point was to direct the jury that it must disregard the evidence and explain that Kaminic could not see inside the mind of Safetli or provide an opinion of what he meant. I also accept that the evidence and the submissions made by the Prosecutor had the capacity to prejudice the applicant by extending the period of his involvement to a time when neither Gattellari nor anybody else suggested he had solicited the murder or discussed the possibility of killing McGurk. The evidence and submissions constituted a subtle but important shift in the prosecution case. Gattellari denied the relevant conversation but his evidence was that, at the time the Safetlis raised with him the possibility of doing something “heavier” including “the final job”, “the McGurk matter hadn’t even come up” (AB 2175).

If ground 5 stood alone, it may be appropriate to find that the impermissible questioning was unlikely to have impact on the overall fairness of the trial. That is because there were no submissions to the jury on the evidence and because the ground focusses attention on two questions in the context of a trial that was conducted over many weeks. However, it does not stand alone and the inappropriate questioning came at the very conclusion of the cross-examination of Peter Medich. It was likely to have stuck in the mind of the tribunal of fact.

Ground 7 involved a failure to direct the jury on an issue that may have had a significant impact the outcome of the case. It had a capacity to impact on an overall assessment of Gattellari’s credibility and the case as a whole in a significant way.

Taking into account this combination of errors and the fact that, in spite of the strength of the prosecution case, it was ultimately a case that came down to an assessment of the credibility of a number of witnesses, and in particular two witnesses whose evidence the law recognises may be unreliable. In these circumstances, I am unable to conclude that no substantial miscarriage of justice actually occurred.

In view of the relevant authorities, there may appear to be some tension between my conclusion that the verdict is not unreasonable or unable to be supported and my conclusion that the proviso should not be applied. [50] In both instances, the appellate court is required to make an independent assessment of the evidence to decide whether the admissible evidence establishes guilt beyond a reasonable doubt. In reality, there is no such tension for three fundamental reasons. First, in each instance, the conclusion is guided by the entrenched constitutional role of the jury in determining guilt in criminal cases and the advantages enjoyed by the tribunal of fact which sees and hears the witnesses giving evidence. This involves, but is not limited to, the fact that the case was to a very large degree to be determined by reference to the reliability of Gattellari and the credibility of a number of witnesses called by the prosecution and on behalf of the applicant. Second, in relation to grounds 1 and 2 (the unreasonable verdict grounds) the appellate onus is on the applicant, whereas the onus is on the respondent to establish that the proviso should apply once error is established under grounds 4, 5 and 7. Third, as the High Court emphasised in Weiss v The Queen at [44] “the permissive language of the proviso (‘the Court ... may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal ...’) is important”.

I accept the respondent’s submissions that this is not an appropriate case to enter a verdict of acquittal. The reasons for that conclusion are essentially twofold. First, the offences are extremely serious and there is a strong public interest in such cases being determined and adjudicated at trial. Second, the prosecution case, in spite of the weaknesses in Gattellari’s evidence, is a strong one. I do not accept the applicant’s submission that the subjective circumstances of the case, such as the applicant’s age, justify this Court entering verdicts of not guilty. Subject to the discretion of the Director of Public Prosecutions, there should be a re-trial.

For those reasons, I would make the following orders: