Supreme Court New South Wales Medium Neutral Citation: R v Gatt (No 7) [2018] NSWSC 488 Hearing dates: 10 April 2018 Date of orders: 12 April 2018 Decision date: 30 April 2018 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: The disputed evidence is relevant and should not be excluded under s 137 of the Evidence Act 1995 (NSW). Catchwords: CRIMINAL LAW – practice and procedure – disputed evidence concerning a shooting – whether evidence is relevant – whether it should be excluded under s 137 of the Evidence Act 1995 (NSW) - whether the probative value of the disputed evidence is outweighed by the danger of unfair prejudice to the accused – evidence relevant and should not be excluded Legislation Cited: Evidence Act 1995 (NSW), s 55, s 65, s 137 Cases Cited: Bayley v R (2016) 260 A Crim R 1; [2016] VSCA 160 CA v R [2017] NSWCCA 324 Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311; [1906] HCA 70 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44 R v Knight [2005] NSWCCA 241 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 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. During the trial, I concluded that disputed evidence concerning a shooting was relevant and should not be excluded under s 137 of the Evidence Act 1995 (NSW). These are the reasons. 2. The Crown's case is that it was the accused who shot Bassil Hijazi on 29 July 2013 at Bexley, and in the alternative, that he was then involved with George Borg, who later pleaded guilty to his involvement in the murder, in a joint criminal enterprise. Mr Borg has been sentenced for his part in the murder, receiving a combined discount for his plea and both past and future assistance. There are thus issues as to Mr Borg's evidence about which the jury will be given warnings in accordance with s 65 of the Evidence Act 1995 (NSW). 3. There were two other shootings. The first occurred at Lakemba, some weeks before the murder. The date is in issue. Then shots were fired at a van in which Mr Gatt was sitting with his then girlfriend, Ms Sawaya, which missed both Mr Gatt and Ms Sawaya, but struck the van near the fuel tank. Forensic examination of the van later led to the recovery of a bullet. Examination of that bullet established that it had been shot by a gun later found in the possession of Abbas Hijazi, a close, but unrelated friend of Bassil Hijazi, who had earlier been involved in a fight with another unidentified man at a service station with Mr Borg and Mr Gatt. 4. The second shooting occurred on 9 June, at Hudson Street, Hurstville, near 103 Forest Road, where it finally emerged, Mr Gatt had been living until about 24 May. Police investigation followed a report of the shooting from a Mr Green, who was then living nearby at 103 Forest Road, near the intersection with Hudson Street. Mr Gatt was then living at another apartment at Wolli Creek, where he was still living at the time of the murder in July. 5. Later forensic examination of bullet casings found at the scene of the Hudson Street shooting, established that they were fired from the gun used in July to murder Bassil Hijazi, on Mr Borg's evidence, by Mr Gatt. 6. There was CCTV footage of cars stopping at the scene of the shooting on Hudson Street on the night it occurred, shortly before the 000 call, which the Crown intended to adduce as part of its circumstantial case, to establish both the context in which the murder had occurred and that Mr Gatt had a motive for the murder he committed. 7. Mr Green was finally not available to give evidence, but on the night police also spoke to another resident of 103 Forest Road, Mr Cai, who told them that he had also heard some loud bangs coming from the direction of Hudson Street, but he could not say precisely when. 8. Mr Gatt contended that the evidence of the Hudson Street shooting was not admissible, because it was not relevant and even if relevant, should be excluded under s 137 of the Evidence Act. Is the evidence relevant? 1. Mr Gatt's case was that the disputed evidence was not relevant because it could not permit the jury to conclude that it was he who had earlier fired the murder weapon at Hudson Street, Hurstville; that it was fired from the white car which is seen in the footage; or that this car belonged to Ms Sawaya. 2. I was, nevertheless, satisfied that the evidence was relevant, given the circumstantial case which the Crown advances. 3. As Heydon J observed in Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 at [177]: "… The relevance of evidence does not depend on its capacity by itself to prove the prosecution case on a particular issue, or to raise a reasonable doubt in favour of the defence on that issue. The effect on assessing probability which is to be looked for is the effect of the contested evidence taken with other evidence either admitted by the time the controversial evidence is tendered, or to be called." 1. As discussed in CA v R [2017] NSWCCA 324 at [81], it is a matter for the prosecution as to how it wishes to rely upon evidence in the case it advances. In a circumstantial case the Crown generally does not have to establish any particular fact or circumstance relied on, beyond reasonable doubt, including evidence led to establish background, context or motive, which in this case includes Mr Gatt and Mr Borg's involvement in drug dealing and access to and use of firearms and his prior involvement with Bassil Hijazi and Abbas Hijazi. 2. The Crown's case is advanced on Mr Borg's evidence; the evidence of other witnesses who heard or saw what happened when Bassil Hijazi was murdered; as well as various circumstantial evidence, including expert evidence and the evidence of the two prior shootings. The Crown did not seek to adduce the disputed evidence for a tendency purpose, but as part of its circumstantial case. 3. All of the circumstances established by the evidence will thus have to be considered and weighed together by the jury with the direct evidence, in deciding whether an inference consistent with Mr Gatt's innocence is reasonably open: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47] citing The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46]. The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Hillier at [48]. 4. In such a case, evidence of motive is relevant, because it bears upon the probability that it was the accused who killed the deceased: Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44 citing Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311; [1906] HCA 70. Such evidence is a circumstance which must be taken into account, together with any other relevant circumstance: R v Knight [2005] NSWCCA 241 at [63]. 5. Evidence of context or background is also relevant and admissible as circumstantial evidence under s 55, if it is evidence that, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. 6. In this case, what is ultimately in issue is whether it was Mr Gatt who shot Bassil Hijazi, or was then involved in a joint criminal enterprise with Mr Borg to shoot him. 7. In opening, the defence case was explained to be that while there would be evidence about drug dealing and firearms, it was Mr Borg, not Mr Gatt, who shot Bassil Hijazi and that Mr Gatt had not been involved in any joint criminal enterprise with Mr Borg, he having known nothing about any planned shooting. Mr Gatt's case was explained to raise issues as to the respective roles played by he and Mr Borg. It was also then indicated that the evidence of Mr Borg, as well as that of John Terepo, would be challenged in cross-examination. 8. There was, however, no issue between the parties about various aspects of the Crown's case including, it appeared, that the accused and Mr Borg were friends who were together involved in drug supply and who had access to firearms; that Bassil Hijazi and another person, Mr Borg and Mr Gatt, had all been involved together in a fight at a service station, from which Bassil Hijazi ran away; that both the Lakemba and Hudson Street shootings and the murder occurred later; that Mr Gatt and Mr Borg were both present and at least one of them was armed with a gun, when Bassil Hijazi was shot at the carpark at Bexley; that only one gun was then fired; that it was the gun which had been used in the Hudson Street shooting; that the gun had never been found; but that Mr Gatt had other firearms, when he was arrested in November 2013; including a Beretta, which Mr Borg claimed Mr Gatt had produced on 29 July, when Bassil Hijazi was killed. 9. Mr Borg had given both direct evidence about how the murder occurred, as well as context evidence and evidence going to motive. Various aspects of his evidence was to be corroborated by other evidence, including that of experts and other witnesses. In short, the evidence on which the Crown relied included that: 1. Mr Borg and the accused were close friends who were involved together in drug supply at the time Bassil Hijazi was shot on 29 July 2013. He was then frequently Mr Gatt's driver; 2. Before the murder there had been a physical fight between Mr Gatt and Mr Borg on the one hand and Bassil Hijazi and another person on the other; from which Bassil Hijazi ran; 3. On 8 June 2013 police responded to reports of a shooting at Holdern Street, Lakemba, but nothing was found there; 4. On 9 June 2013 police responded to reports of the Hudson Street shooting made by Mr Green a resident of 103 Forest Road. While Mr Gatt had not lived at 103 Forest Road since some weeks before the Hudson Street shooting, he went there afterwards; 5. CCTV footage showed a small white sedan similar to the one then registered to Ms Sawaya, who lived at Bexley, stopping in the vicinity of the shooting after the reported shots and a dark sedan then stopping there, a person emerging twice from the passenger side of the vehicle, the first time bending over towards the ground at the rear of the sedan and the second time, holding a light source. Later that night police retrieved three fired cartridge cases from the area where these cars had stopped, which later forensic examination established had been fired by the gun used to murder Bassil Hijazi; 6. The number plate of the white car was not visible on the footage. On 11 June 2013, Ms Sawaya reported a number plate theft from her white Mazda 3 sedan at Bexley between 7 and 11 June by unknown persons; 7. On 12 June 2013 Mr Gatt went to America, returning on 19 June. On Mr Borg's evidence while Mr Gatt had carried guns beforehand, on his return Mr Gatt regularly carried a number of different guns, while they were dealing drugs, including one which fits the description of the murder weapon; 8. Mr Gatt told Mr Borg that shots had been fired at the van they used for drug supply, while he was driving it and his girlfriend, Ms Sawaya, was present, just after he left McDonalds at Lakemba, the night before he went to America on 12 June and that bullets had struck the van near the fuel tank; 9. In cross-examination Mr Borg agreed that he had had access to Mr Gatt's guns; that friends and associates of he and Mr Gatt, the Nanouh brothers, who were also involved in drug dealing and also had guns; but he denied that he had ever himself owned a gun which he had used to threaten anyone; 10. On 16 June 2013 police found a firearm, bullets and a loaded magazine in a vehicle which had come under police surveillance and where Abbas Hijazi had been observed handling a gun. He denied any knowledge of the firearm, but later expert examination of that gun established that it was the gun used to fire at Mr Gatt's van at Lakemba; 11. On 5 July 2013 the van was stopped for a random breath test while Mr Gatt was driving it and Mr Borg was a passenger; Mr Borg ran from the vehicle and dropped items including drugs. In cross-examination he denied then having with him a gun which he hid and later retrieved, while in the company of Mr Gatt and another friend, who drove them; 12. On 29 July 2013 Mr Borg drove Mr Gatt to the carpark at Bexley in a white hired Corolla, after first stopping at the Nanouh brothers' house in Hurstville. Mr Gatt there learned that Bassil Hijazi was at the carpark at Bexley; after first parking the car and walking to the carpark, they drove into the carpark; that they were both armed when they got out of the Corolla, Mr Borg with a Beretta and Mr Gatt with the murder weapon. They both approached the car in which Bassil Hijazi was sitting, but it was Mr Gatt who fired the shots which killed him, Mr Borg having anticipated that there might have been a fight, but not a shooting; 13. That murder weapon has never been found, but later examination of the bullets and bullet casings found at the scene and in Bassil Hijazi's body, established that it was the gun which had been used in the earlier shooting at Hudson Street, Hurstville; 14. After the shooting, Mr Gatt and Mr Borg drove the Corolla to Mr Gatt's apartment at Wolli Creek, where they changed their clothes and where at least one of the Nanouh brothers attended with two other people. All five men then left the apartment together, Mr Borg and Mr Gatt later returning with clothes collected from Mr Borg's home at Peakhurst. Mr Borg then stayed with Mr Gatt for some weeks at Wolli Creek, during which, on Mr Borg's evidence, Mr Gatt had the murder weapon destroyed by another friend; 15. The Corolla was returned to the hirer on 1 August 2013; 16. The van was sold in September 2013 from the carpark at 103 Forest Road and when police later gained access to it, forensic examination established that it had been repaired in a location consistent with Mr Borg's account. A bullet found in its structure, was later identified to have come from the gun seen in Abbas Hijazi's possession, seized on 16 June; 17. The Wolli Creek apartment and Mr Borg's car came under police surveillance; 18. Even though Mr Borg was careful about what he discussed in his car, he was later recorded there discussing his and Mr Gatt's involvement in the murder with another friend; 19. On 28 October 2013, optical surveillance footage showed Mr Gatt in his apartment, cleaning a firearm before placing it into his pants. Other footage showed him pointing another gun, while in the apartment; 20. On 1 November 2013, Ms Sawaya booked a removalist to move the contents of Mr Gatt's apartment to Victoria; 21. On 2 November 2013, a police operation resulted in Mr Gatt being arrested when he ran from the building. Search of the removalist truck located three other wrapped weapons and ammunition: two pistols and a rifle. 22. DNA testing of those three firearms linked Mr Gatt and Mr Borg to the Colt and Beretta and Ms Sawaya, to the Colt. 1. On all of this evidence, I was satisfied that it had to be concluded that the disputed evidence as to the Hudson Street shooting was circumstantial evidence which, if accepted by the jury, could rationally affect its assessment of the probability that it was Mr Gatt who shot Bassil Hijazi, or that he was then involved in a joint criminal enterprise with Mr Borg to shoot him. 2. As well as Mr Gatt's drug dealing, including in the St George area, the evidence connected him with a number of places there: 1. Rockdale, where he and Mr Borg trained together at a gym; 2. Hurstville, where he and Mr Borg lived together at Bond Street for some time, before they both moved to separate apartments on Forest Road, where Mr Gatt lived at 103 Forest Road for 12 months, until May 2013, but where he later used the carpark; and where the Nanouh brothers lived; 3. Peakhurst, where Mr Borg lived at the time of the murder; 4. Wolli Creek, where Mr Gatt lived at the time of the murder; and 5. Bexley, where Mr Gatt's family home was; where Bassil Hijazi lived and was killed at the carpark, where Mr Borg and Mr Gatt had earlier supplied drugs; and where an acquaintance had a barbershop near the carpark. 1. The evidence also connects Mr Gatt to at least four vehicles: 1. the van which Mr Gatt and Mr Borg used for drug dealing and which was hit by the shots fired in Lakemba; 2. the hired Corolla which Mr Gatt and Mr Borg used for drug dealing, which they drove to the Bexley car park on 29 July 2013; 3. Mr Borg's car, which was also used for drug dealing; and 4. Ms Sawaya's car, which fitted the description of one of the two cars caught on the CCTV footage at Hudson Street, where the spent cartridges fired by the murder weapon were later found. 1. The evidence also connects Mr Gatt to four firearms: 1. the gun which was used at the Hudson Street shooting and to murder Bassil Hijazi and which was then taken to Mr Gatt's apartment at Wolli Creek; 2. the Beretta found in Mr Gatt's possession in November 2013, which on Mr Borg's evidence he was holding when Bassil Hijazi was shot and on which both his and Mr Gatt's DNA was found; 3. the Colt also then found in Mr Gatt's possession, on which Mr Gatt and Ms Sawaya's DNA were found; and 4. the rifle then also found in Mr Gatt's possession. 1. There was also ammunition and other gun paraphernalia then found in Mr Gatt's possession. 2. The Crown did not rely on the earlier use of the murder weapon at the Hudson Street shooting to establish that it was Mr Gatt who then fired that weapon. It was rather relied on as part of the circumstantial evidence which connects Mr Gatt with the gun which, on Mr Borg's evidence, he used on 29 July to murder Bassil Hijazi. 3. While the evidence relating to the Hudson Street shooting would be an even stronger part of the Crown's circumstantial case, had Mr Green been available to give evidence, I was, nevertheless, satisfied that it had to be accepted that the disputed evidence could rationally affect the jury's assessment of the probability that it was Mr Gatt who shot Bassil Hijazi, or that he was then involved in a joint criminal enterprise with Mr Borg, which resulted in Bassil Hijazi's death. 4. In the result, I concluded that the disputed evidence about the Hudson Street shooting was relevant, given the proximity of the three shootings to each other; that it was the murder weapon which was used at the Hudson Street shooting; Mr Gatt's connections to that location and to a car fitting the description of his girlfriend's car, seen there close to the time of the shooting; the evidence of the nature of the relationship between Mr Gatt and Mr Borg and the drug dealing in which they were involved, including at Hurstville; their prior involvement with Bassil Hijazi and Abbas Hijazi; and the other evidence as to Mr Gatt and Mr Borg's access to and use of firearms, as well that of the Nanouh brothers and Abbas Hijazi. 5. Further, that the disputed evidence was evidence of circumstances which could rationally affect the jury's assessment of the probability of the existence of matters which ultimately fall to it to decide. 6. Accordingly, I concluded that the disputed evidence was relevant. Section 137 of the Evidence Act - is the probative value of the disputed evidence outweighed by the danger of unfair prejudice to the accused? 1. Section 137 required that admission of the disputed evidence be refused, "if its probative value is outweighed by the danger of unfair prejudice to" Mr Gatt. 2. "Probative value' is defined in the Dictionary of the Evidence Act to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". 3. As discussed in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [30], it was not possible to determine the actual probative value of the disputed evidence until the trial was complete. Probative value is concerned with the potential of the evidence to have the relevant quality, that is, ''it is predictive, as to what the jury could rationally make of it, when all the evidence is in": IMM at [30]. 4. The probative value of the evidence thus had to be assessed on the assumption that it will be accepted by the jury as supporting the inference that it was either Mr Gatt who shot Bassil Hijazi, or that he was involved in a joint criminal enterprise to shoot him: IMM at [48]. 5. The case advanced for Mr Gatt was that there was a risk that the jury would overvalue the disputed evidence, given that it concerned the prior discharge of the murder weapon in a public place, irrespective of directions it was given as to the use it could make of the evidence, because that it had the real capacity to turn the jury emotionally against him. When those risks were considered together with the weakness of the evidence about the Hudson Street shooting, even taken at its highest, as it was accepted it must be, it would be concluded that it had but limited capacity to prove the ultimate issues as to Mr Gatt's guilt. In the result, it had to be concluded that it lacked the probative force which would render it admissible, in the face of the danger of unfair prejudice: Bayley v R (2016) 260 A Crim R 1; [2016] VSCA 160. 6. I did not consider what was decided in Bayley to be of assistance in resolving what was here in issue, given that what there arose for consideration was identification evidence and what was here in issue was the admission of evidence about the circumstances in which the murder weapon was used some weeks prior to the murder. 7. The question of whether the disputed evidence had to be excluded, had to be determined by the probative value of the evidence sought to be relied on as part of the Crown's circumstantial case, being assessed. That did not depend on its capacity, by itself, to prove anything. Further, it had to be assumed that it would be accepted by the jury, in this case, as supporting the inference either that it was Mr Gatt who shot Bassil Hijazi or that he was then involved in a joint criminal enterprise to shoot him. Questions of credibility or reliability played no part in this assessment, those being matters properly left to the jury, if the evidence is admitted: IMM confirming the approach in R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 and R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121. 8. While this did not require competing inferences which may arise from the disputed evidence to be ignored I was, nevertheless, satisfied that the disputed evidence was capable of supporting the inference that it was the accused who fired the gun used to murder Bassil Hijazi on 29 July, rather than Mr Borg, when it was considered together with all the other evidence. 9. Whether that is accepted by the jury will depend on its assessment of the disputed evidence together with all of the other direct and circumstantial evidence on which the Crown relies, in light of the cases which the parties advance, including as to Mr Borg's evidence as to Mr Gatt's access to and use of guns prior to and, on the night of the murder. 10. From Mr Borg's evidence, including that adduced from him in cross-examination, both he and Mr Gatt had access to weapons, including the murder weapon, before it was destroyed after it was taken to Mr Gatt's apartment after the murder, where Mr Borg then remained for some weeks with Mr Gatt. The circumstantial evidence about the Hudson Street shooting, was thus capable of corroborating aspects of Mr Borg's evidence and ultimately, supporting the Crown case that it was Mr Gatt who had used that weapon, to murder Bassil Hijazi. 11. In the result, I was also satisfied that the disputed evidence had real probative value. 12. That receipt of the evidence made it more likely that the accused would be convicted was not a basis for excluding it under s 137: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]. What had to be shown to demonstrate risk of unfair prejudice was that the jury would use the evidence upon a basis logically unconnected with the issues in the case: Papakosmas at [92] – [93]. 13. The unfair prejudice identified for Mr Gatt to arise from the disputed evidence was the risk that the jury would impermissibly use what alone was a weak piece of circumstantial evidence, by reasoning that it was Mr Gatt who had earlier fired the murder weapon at the Hudson Street shooting. It also had the capacity to turn the jury emotionally against Mr Gatt and thereby to risk it failing to engage in a proper process of reasoning, in determining whether he was guilty of the murder he has been charged with. 14. Given the evidence received, not only that adduced by the Crown, but that adduced by the accused through Mr Borg's cross-examination, about the involvement of he, Mr Gatt and their associates in drug supply and their access to and use of firearms, I was not satisfied that the disputed evidence gave rise to the risk of unfair prejudice, for which Mr Gatt contended. 15. All of that evidence raised a risk that the jury would have an emotional reaction against the accused, which the directions would seek to guard against by directing the jury as to how it had to approach the evidence of Mr Gatt's involvement in such other offending. In that context, as the Crown submitted, evidence that the murder weapon had been used at the Hudson Street shooting, neither altered this necessity, nor increased the risk that the jury would take an adverse view of Mr Gatt, so as to result in unfair prejudice. 16. That conclusion was reinforced by the consideration that it was not the Crown case that the disputed evidence about the Hudson Street shooting would establish that it was Mr Gatt who had then fired the murder weapon. Rather, it was part of the circumstantial case relied on to shed light on his connection to that weapon, which the jury would have to take into account with the other evidence on which the Crown relied, to establish its case . 17. The jury would thus be reminded of how the parties advanced their cases and directions would be given about matters such as the caution with which Mr Borg's evidence would have to be approached, given his criminal involvement in the murder; that it must not use tendency reasoning, given the evidence of the accused's involvement in drug dealing and possession and use of firearms; as to how that evidence and the Crown's circumstantial case must be approached; that Mr Gatt is entitled to be acquitted, if it was not satisfied beyond reasonable doubt of his guilt; and that he is entitled to the benefit of any reasonable doubt which the jury has. 18. I was thus unable to accept that in all of those circumstances, there was a real risk that the disputed evidence would alter the matters about which the jury would have to be directed in any event, or that it separately gave rise to a risk that the jury would have an emotional reaction against the accused and therefore misuse the disputed evidence. In the result, it had to be concluded that failing to exclude the disputed evidence, would not result in unfair prejudice to the accused. 19. Nor was I satisfied that this was one of those cases where it had to be concluded that the nature of the disputed evidence was such that there was a real risk that the jury would not be able to adhere to the directions which they would be given, as to the nature of the parties' cases and how they can use the disputed evidence. 20. In the result, I could not conclude that the probative value of the disputed evidence outweighed the danger of unfair prejudice to the accused, which its receipt would give rise to. ********** 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