Supreme Court New South Wales Medium Neutral Citation: R v Gatt (No 3) [2018] NSWSC 427 Hearing dates: 6 April 2018 Date of orders: 06 April 2018 Decision date: 30 April 2018 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Leave sought under s 38 granted. Catchwords: CRIMINAL LAW – evidence – application under s 38 of the Evidence Act – leave sought granted Legislation Cited: Evidence Act 1995 (NSW), s 38 Category: Procedural and other rulings Parties: Regina (Crown) Joseph Gatt (Accused) Representation: Counsel: Mr A Robertson (Crown) Mr P Boulten SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) The Law Practice (Accused) File Number(s): 2014/186944 Publication restriction: Nil Judgment 1. Under s 38 of the Evidence Act 1995 (NSW), I granted the Crown leave to cross examine one of its witnesses, Mr John Terepo, about evidence he had given which was unfavourable to the Crown case and/or inconsistent with prior statements which he had made, either to police when he was interviewed on the night of Bassil Hijazi's murder in 2013, or at the committal hearing in 2015. 2. The accused did not object to the leave sought being granted and it was accordingly granted, I being satisfied that the requirements of s 38 were satisfied on the evidence on which the Crown relied, which established that much of Mr Terepo's evidence was unfavourable to the Crown case and, in part, inconsistent with his prior statements. 3. Mr Terapo said repeatedly that his memory of the night of Bassil Hijab's murder was bad, his memory having been affected by his drug abuse. He said repeatedly that he could not recall events of which his ERISP established he had a memory when interviewed on the night of the murder. The transcript of the evidence which he gave on committal in 2015 also established that he then also had a clear memory, at least some of those events, including when challenged in cross-examination, as to the details of those events. 4. In the result, his evidence in these proceedings was in various relevant respects inconsistent with his earlier statement and the evidence he had given at committal, in ways which clearly made his evidence unfavourable to the Crown case. 5. In those circumstances I was satisfied that the leave sought by the Crown under s 38 had to be granted. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2018