R v Ronald Edward Medich (No. 18)

Two separate issues have arisen regarding aspects of evidence sought to be elicited from the witness Clinton Sarina. In order to put those issues in context, it is necessary for me to make some reference to Mr Sarina and the contents of the statement that he made to the police.

Mr Sarina was previously employed in the finance industry. Through that employment he was introduced to the deceased in about 2003. Over the ensuing years he came to know the deceased. He mixed with him both professionally and socially. He told the police that he facilitated millions of dollars worth of loans for the deceased, and for people who were referred to him by the deceased.

Mr Sarina made a statement to the police on 5 August 2009. There are three particular paragraphs of that statement which are relevant for present purposes. Firstly, Mr Sarina said the following at (11):

In (12) the following is stated:

In (17) the following is stated:

I interpolate that the reference in (17) to the “charges against Michael (being) dropped by the DPP” is a reference to the fact that the deceased was at one point charged with arson. Evidence was given yesterday by Det. Hetherington, who laid those charges, that they were withdrawn by the Director of Public Prosecutions. Det. Hetherington also gave evidence that on 3 September 2009, that being the date on which the deceased was killed, he rang the accused and discussed with him the fact that the charges had been dropped. He said that when so informed, the accused was agitated and said words to the effect:

The reference to "the bastard" was obviously a reference to the deceased.

I should observe before going any further that there are various shortcomings in the form in which the statement of Mr Sarina has been prepared. I proceed to deal with these issues on the obvious assumption that if any of the evidence were allowed, it would be led in an admissible form.

The Crown proposes to call Mr Sarina, but will not lead any evidence in-chief from him. He will simply be made available for cross-examination. Senior counsel for the accused has foreshadowed an intention to elicit the contents of (11) in cross-examination. He has made it clear that any cross-examination of Sarina will be limited to that paragraph of his statement.

The Crown has submitted that if the contents of (11) were left on their own, it would result in an incomplete, and indeed distorted, picture being painted concerning the representations made to Mr Sarina by the deceased about the threats that he was receiving. In those circumstances the Crown has submitted that if I were to allow the contents of (11) to be elicited in cross-examination, the Crown should be permitted to re-examine Mr Sarina on the representations made to him by the deceased which are contained in (12) and (17). The Crown submitted that s. 65(9) of the Evidence Act 1995 (NSW) (“the Act”) properly facilitated that course, and that if such a course were not followed, the evidence in (11) should be excluded under s. 135(b) of the Act.

The Crown submitted that in all of the circumstances the proposed re-examination was relevant within the terms of s. 55 of the Act. The Crown submitted, in particular, that the contents of (11), (12) and (17) were necessarily related. The Crown submitted that this relationship was such that absent the contents of (12) and (17), the contents of (11) had the capacity to leave the jury with an incomplete and inaccurate portrayal of the entirety of the representations which were made by the deceased to Mr Sarina regarding threats made to him.

In advancing its position, the Crown referred me to a number of authorities including R v Mankotia [1998] NSWSC 295 and Eastman v R (1997) 158 ALR 107. It was the Crown's submission that these authorities supported the conclusion that what was sought to be elicited in the proposed re-examination from Mr Sarina was evidence as to the same "matter" as that to which the proposed cross-examination in respect of (11) was directed.

Senior counsel for the accused objected to the Crown's proposed re-examination. He submitted that in all of the circumstances it was not relevant and that if it was, it should be excluded pursuant to s. 137.

Senior counsel submitted that the contents of (12) and (17) were not related in any material way to the matters referred to in (11), and amounted to little more than a speculative opinion expressed by the deceased as to who may have been behind the threats said to have been made to him.

In the course of the matter being argued, I pointed out the obvious difficulties in determining, in advance of any cross-examination, what might be permitted by way of re-examination, without firstly hearing the cross-examination. In reaching the conclusions that I have expressed in these reasons, I have done so on the assumption that if the evidence in (11) were led, it would be adduced generally in accordance with what appears in the statement. I have also assumed that if the re-examination were permitted, it would be elicited (subject to questions of form) consistent with what appears in (12) and (17).

There are a number of provisions of the Act which are engaged by these issues. They include ss. 39, 55, 65(9), 135 and 137.

Section 39 is in the following terms:

Section 55 is in the following terms:

Section 65(9) is in the following terms:

Section 135 is in the following terms:

Section 137 is in the following terms:

It seems to me that be contents of (11) are relevant and admissible. Accordingly, the first issue to be determined is whether or not the proposed re-examination is relevant in terms of s. 55 of the Act.

In a previous judgment I considered the admissibility of a statement said to have been made by the deceased to a member of the media. On that particular occasion the deceased was reported to have said:

On the Crown case, the reference to “this guy” was clearly a reference to the accused. I concluded on that occasion that that evidence amounted to an expression of opinion about what the deceased may have thought. In excluding the evidence, I pointed out that the state of mind of the deceased was not, as matters stood at that point, a fact in issue: R v Medich (No 8) [2016] NSWSC 1713.

However, if the contents of (11) were admitted those circumstances would change. In particular, the deceased's state of mind about who he thought was behind the threats would be made relevant. Accepting that to be the case, the proposed re-examination, on the assumption that (11) was admitted, would fall squarely within s. 39.

As I pointed out in the course of argument, s. 65(9) is a facilitative provision which allows the admission of what would otherwise be inadmissible hearsay evidence. It plainly encompasses a situation where the Crown seeks to respond to the admission of other evidence: Eastman at [80].

The terms of s. 65(9) allow evidence about "the matter" to be adduced. In Mankotia, Sperling J observed that there was a "serious question” to be asked about the ambit of the phrase 'the matter’ as it appears in the section. Having made that observation, his Honour was not called upon to definitively answer the question(s) to which he referred. However in the circumstances of the present case, it seems to me that the relevant "matter" concerns representations made by the deceased as to threats made against him. The proposed re-examination goes to the issue of those threats, and specifically to the issue of the deceased's belief as to who was behind them.

In my view s. 65(9) facilitates the admission of the evidence subject only to the operation of s. 137. Section 137 mandates the exclusion of evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. The probative value of the evidence in (12) and (17) is, given the contents of (11), high. Certainly the evidence is prejudicial but as I have observed in other judgments, so is every piece of evidence in a Crown case. Section 137 refers to the danger of unfair prejudice. There is, in my view, no perceivable danger of unfair prejudice to the accused if the re-examination is permitted. In particular, there is no danger of the evidence being misused in any way.

Accordingly, and subject to the matters to which I have already referred, if the evidence in (11) is elicited in cross-examination, I propose to allow the Crown to re-examine Mr Sarina in respect of the remaining two paragraphs.

Finally, an issue has arisen having regard to s. 42 of the Act which is in the following terms:

Section 42 gives the Court a power to limit the use of leading questions in cross-examination in certain circumstances. The considerations in s. 42(2) are mandatory but they are not exclusive. That contained in s. 42(2)(a) has no application in the present case. Those in s. 42(2)(b) and (c), have some application to the present circumstances. Certainly the evidence in (11) of Sarina's statement is evidence which assists the accused. Section 42(2)(d) has no application.

The underlying purpose of s. 42 is to foster the integrity of evidence: Uniform Evidence in Australia (Williams & Ors) at [42-2]. As I have observed, although the matters in s. 42(2) are mandatory, they are not exclusive. In my view, the nature of this evidence is such that the use of non-leading questions would better facilitate such evidence being adduced. Accordingly, if the contents of (11) are to be cross-examined upon, leading questions will not be allowed, save for any question which might go to an inconsistency between what the witness has said in oral evidence and what he said in his statement. The same will obviously apply to any re-examination.