R v Gatt (No 4) [2018] NSWSC 490

Supreme Court New South Wales

Medium Neutral Citation: R v Gatt (No 4) [2018] NSWSC 490 Hearing dates: 9 April 2018 Date of orders: 09 April 2018 Decision date: 30 April 2018 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Evidence relevant and admissible and could not be excluded under s 137 of the Evidence Act. Catchwords: CRIMINAL LAW - evidence – disputed telephone calls – evidence relevant to circumstantial case – relevance established – evidence cannot be excluded under s 137 of the Evidence Act Legislation Cited: Evidence Act 1995 (NSW), ss55, 56, 137 Cases Cited: DJV v R (2008) 200 A Crim R 206; [2008] NSWCCA 272 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 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. The case as opened for the Crown included that in July 2013 when Bassil Hijazi was murdered, the accused was supplying prohibited drugs and George Borg, his close friend, was regularly his driver; that the accused had been the victim of a shooting at Lakemba in June 2013 by Abbas Hijazi, a close but unrelated friend of Bassil Hijazi; and that it was either the accused who shot Bassil Hijazi, or that he was then part of a joint criminal enterprise with George Borg, to shoot him. 2. Mr Gatt's case was opened on the basis that it was agreed that before and on the day of the shooting, he and George Borg were involved together in drug supply in the local area, although there was a dispute about exactly what their roles were. Further, that while there was no dispute that Mr Gatt was later found in possession of firearms, none of them were the murder weapon; and that on 29 July he and George Borg had gone to the car park where Bassil Hijazi was shot, to deal drugs and that they left together after the shooting. Mr Gatt denied, however, that he had either shot Bassil Hijazi or that was he involved in any joint criminal enterprise to shoot him, there having been no prior plan to shoot Bassil Hijabi. It was also indicated that the evidence which Mr Borg would give would be strenuously challenged. 3. As part of its circumstantial case the Crown relies on two telephone calls made by the accused to Mr Borg in December 2013, while he was in custody, bail refused, on drug and firearm offences, but when neither he nor Mr Borg had been charged with murder. Their relevance was in issue, as was the question of whether they had to be excluded under s 137 of the Evidence Act 1995 (NSW). 4. These are the reasons why I concluded that the disputed calls were relevant and thus admissible and that they could not be excluded under s 137.