R v Ronald Edward Medich (No. 16) [2017] NSWSC 104 (20 February 2017)

Last Updated: 24 April 2018

Supreme Court New South Wales

Case Name:	R v Ronald Edward Medich (No. 16)
Medium Neutral Citation:	[2017] NSWSC 104
Hearing Date(s):	20 February 2017
Date of Orders:	20 February 2017
Decision Date:	20 February 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [16]
Catchwords:	CRIMINAL LAW – Evidence – Cross-examination – Credibility rule – Whether evidence substantially affected the credibility of the witness
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	R v El-Azzi [2004] NSWCCA 455 R v Medich (No 13) [2017] NSWSC 70
Category:	Procedural and other rulings
Parties:	Regina – Crown Ronald Edward Medich – Accused
Representation:	Counsel: Ms G O’Rourke SC and Ms S Harris – Crown Mr W Terracini SC, Ms M Curry and Mr T Quilter – Accused Solicitors: Director of Public Prosecutions, New South Wales – Crown Colin Daley Quinn – Accused
File Number(s):	2010/356916
Publication Restriction:	Nil

JUDGMENT - EX TEMPORE (REVISED)

1. An issue has arisen concerning evidence sought to be elicited from the witness Senad Kaminic (“Kaminic”) in cross-examination, to which the Crown has objected. The matter has been dealt with on a voir dire.
2. Exhibit 1 on the voir dire are medical reports from Dr Milorad Sokolovic of 8 February, 2013 and 27 September, 1999. Doctor Sokolovic has been Kaminic's treating psychiatrist since 1998. There is also a report of Dr Faried Ibrahim, who has been Kaminic’s General Practitioner for some years. I will return to the contents of those reports in a moment.
3. Exhibit 2 on the voir dire is a clinical note dated 24 October 2010 regarding Kaminic’s mental state at or about the time that he was taken into custody.
4. Kaminic has also given oral evidence on the voir dire.
5. It is common ground that Kaminic was a member of the Bosnian Army some years ago. It appears that, stemming from his military service, he developed post-traumatic stress disorder (“PTSD”). He made reference in his evidence to being placed, at some stage of his military service, in a concentration camp. He said that his PTSD became worse when he was placed in custody after being charged over his involvement in the deceased’s murder. When asked whether he had depressive symptoms in the period leading up to his arrest, he answered to the effect that he did so "more or less."
6. Kaminic has undergone psychiatric treatment in recent years. He also gave evidence that he had suffered some hallucinations and voices at about the time of being taken into custody, but that those hallucinations diminished over a period of time to the point where, since his release in 2015, they have abated entirely.
7. Kaminic also accepted in the course of cross-examination that he has previously engaged in what might be described as “binge drinking” from time to time, and has received various warnings from his treating practitioners about the adverse effect of that drinking on his health.
8. The reports of Dr Sokolovic make reference to Kaminic's medical history and, in particular, the fact that he was "exposed to all atrocities" in the civil war in the former Yugoslavia in about 1990. The report of Dr Sokolovic of 8 February 2013, which effectively incorporates the majority of the contents of his earlier report of 27 September 1999, makes reference to Kaminic suffering fluctuating symptoms of PTSD. The report indicates that at one point Kaminic was treated with Aurorix, described by Dr Sokolovic as a "potent anti-depressant." However, Dr Sokolovic went on to say that the focus of the treatment given to Kaminic was cognitive therapy and behavioural psychotherapy.
9. The clinical note of 24 October 2010 from Justice Health recorded a history provided by Kaminic when he was taken into custody, in which he expressed a fear that others were going to kill him. He reported that he was experiencing flashbacks, disturbing dreams, and auditory hallucinations. He also reported that the hallucinations were to the effect of somebody wanting to kill him, and laughing at him. He gave a history of having experienced hearing voices for a long time, but said that such voices had increased in frequency (and volume) when he was taken into custody.
10. Having given that history, an urgent psychiatric referral, and a review two days later, were deemed necessary. Whether that referral was put into effect, whether Kaminic was examined, whether any review was undertaken (and if so what the results of such review may or may not have been) are not apparent on the evidence.
11. Senior counsel for the accused submitted that the evidence given by Kaminic as to his history of alcohol abuse, as well as his history of episodic auditory hallucinations, was relevant, and substantially affected his credit within the meaning of s. 103 of the Evidence Act 1995 (NSW) (“the Act”). Senior counsel submitted, in particular, that it was significant that Kaminic had given evidence that the voices he heard whilst in custody were those of Haissam Safetli, a person who has been identified as being involved in the murder of the deceased. Senior Counsel further submitted that the evidence substantially affected the credit of Kaminic, because of the violent nature of the deceased's killing, and the conversations about which Kaminic has given evidence in relation to it.
12. The Crown submitted that any medical issues from which Kaminic was suffering related to his military service and that on a proper analysis of the evidence, hallucinations had not been an issue since at least the time he was released from custody almost two years ago. The Crown submitted that in those circumstances, s. 103 was not engaged.
13. A consideration of section 103 necessarily assumes, in the first instance, that the evidence is relevant to credibility. However, the section makes it clear that the exception to the credibility rule which it creates will apply only if the evidence substantially affects the assessment of the credibility of the witness or question.
14. I have already observed in an earlier judgment that some of the authorities decided when s. 103 was worded differently remain of relevance in determining questions such as the present: R v Medich (No 13) [2017] NSWSC 70 at [14]. For example, in R v El-Azzi [2004] NSWCCA 455 it was observed (at [183]) that in order to come within the ambit of s. 103, the evidence must have the potential to have a real bearing on the assessment of the credibility of the witness. Although s. 103 is now in different terms, that authority continues to provide guidance as to its application. The term “substantially” as it appears in s. 103 must be given its full effect. The term was inserted into the section by the legislature for a reason.
15. I am not satisfied that any of the proposed cross-examination is such as to substantially affect Kaminic's credibility. To the extent that the present application is based on evidence of hallucinations, it is noteworthy that the two reports of Dr Sokolovic, whilst they make reference to a depressive condition, are bereft of any reference to hallucinations. That is of particular significance in circumstances where Dr Sokolovic has been Kaminic's treating psychiatrist since 1998. The mere fact that Kaminic has been treated for a depressive condition does not render the proposed cross-examination such as would substantially affect his credibility, nor does the evidence of his episodic drinking.
16. Accordingly, the evidence will not be permitted.

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