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. Relevance 1. The Crown contended that the disputed evidence was relevant to the circumstantial case which it advances, which relies in part on context or background evidence, which established the nature of the relationship between the accused and Mr Borg, at the time of the murder. 2. The accused's case was that the disputed evidence was not admissible, neither telephone call being able to shed significant light on what was in issue, given the facts of the case. 3. I was nevertheless satisfied that the evidence was relevant under s 55 and thus admissible under s 56 of the Evidence Act. 4. The relevance of the disputed evidence did not depend on its capacity, by itself, to prove anything. Rather, its relevance had to be assessed in light of the other evidence which would be received at trial and what is in issue, including as to the nature of the relationship between Mr Gatt and Mr Borg; their respective roles; and Mr Borg's credit. 5. That required account to be taken of matters such as: 1. the calls were made while the police investigation into Bassil Hijazi's murder was continuing and before either he or Mr Borg were charged with the murder; 2. it was the accused who twice telephoned Mr Borg from custody, after he was arrested and charged with firearm and drug offences; 3. one call was made shortly after the other and both conversations were known to be monitored and so, understandably, they were conducted in a guarded way, without direct mention of either firearms or guns; and 4. the discussion concerned matters which Mr Gatt wanted to raise with Mr Borg, including warnings which Mr Gatt gave Mr Borg about the potential consequences of his actions and Mr Borg's loyalty to Mr Gatt having, he said, become concerned by reports he had received from others, while he was in custody, about Mr Borg's behaviour and loyalty to him. 1. The relevance of the evidence was revealed not only by the contents of the calls, but also by the fact of the accused having made the calls to Mr Borg before either of them were charged with Bassil Hijazi's murder. 2. The evidence thus shed light on what is in issue, given that what Mr Gatt then said corroborates aspects of Mr Borg's evidence, including as to the nature of their relationship and respective roles. 3. It followed that it had to be concluded that the disputed evidence was relevant, given its logical and rational connection with what is in issue about the case which the Crown advances: s 55 of the Evidence Act. 4. I was also satisfied that what was said during the disputed telephone calls could rationally affect, directly or indirectly, the jury's assessment of the probability of the existence of what was in issue in the proceedings, not only in relation to Mr Borg's credibility, but also as to whether he and the accused had been involved in a joint criminal enterprise to shoot Bassil Hijazi, even if the jury is not satisfied beyond reasonable doubt on Mr Borg's evidence, that it was the accused who shot Bassil Hijazi with the murder weapon which has never been found. Exclusion under s 137 of the Evidence Act 1. Section 137 of the Evidence Act 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. The probative value of the evidence had to be assessed on the assumption that it will be accepted by the jury, in this case, 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 v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [48]. 4. That receipt of the evidence makes it more likely that Mr Gatt will be convicted is 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 was that there was a risk that the jury would use the evidence upon a basis logically unconnected with the issues in the case: Papakosmas at [97]. 5. As discussed in DJV v R (2008) 200 A Crim R 206; [2008] NSWCCA 272 at [28], unless other evidence in the trial and the issues which it raises make disputed evidence relevant, in that case to prove the "context" in which an alleged offence occurred, it will be almost inevitable that the discretion should be exercised to exclude the evidence. I was satisfied that this was not such a case. 6. The case advanced for Mr Gatt was that even if admissible, the disputed telephone calls were only of marginal relevance and of low probative value, as to what was in issue, given what was actually then discussed. 7. The unfair prejudice which would flow from the receipt of the evidence was submitted to flow from the fact that the conversations were plainly about drugs and thus put Mr Gatt into an adverse light. That was not conceded by the Crown, drugs not having been mentioned at all during the calls. 8. It also followed, it was further submitted for Mr Gatt, that there was a risk that the evidence would be overvalued by the jury, this being a case where there was a risk that the jury would not act in accordance with the directions which it would have to be given, about the accused's other criminal activities. There was also said to be a risk that the jury would engage in impermissible and illogical reasoning, even though the case had been opened for Mr Gatt with his involvement with drug dealing and firearms, being acknowledged. Despite this, it was argued that not all evidence which revealed such involvement should be admitted, given the risk of an unfair trial which would result. 9. I was nevertheless satisfied that the evidence could not be excluded under s 137, despite the balancing act which the section requires be undertaken. 10. As discussed in IMM at [30], at this stage of the trial it was not possible to determine the actual probative value of the disputed evidence. 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". 11. In resolving what was in issue as to the probative value of the evidence, attention had to be paid to how the cases had been opened to the jury by the parties and what was identified to be in issue, as well as what the disputed evidence revealed. In my assessment, while it shed little light on the drug dealing in which Mr Gatt and Mr Borg had been involved, it had the capacity to shed considerable light on the nature of their relationship and their roles and also to corroborate aspects of Mr Borg's evidence. 12. In the result, I was satisfied that it had to be concluded that the disputed evidence had real probative value, which was not outweighed by the danger of unfair prejudice to Mr Gatt. 13. Given the issues which the parties had identified in opening their cases, the jury will have to consider what all the evidence reveals as to the respective roles of the accused and Mr Borg, in determining the ultimate issues which fall to the jury to decide. Evidence about the nature of the relationship is relevant to these questions. 14. Given the evidence of both Mr Borg and Mr Gatt's involvement with firearms and drug dealing, directions will have to be given to the jury about the use which they can make of such evidence, namely, as evidence of background and the context in which Bassil Hijazi was murdered. That evidence will shed light on what Mr Gatt and Mr Borg did on 29 July 2013 and their respective states of mind at that time. 15. The jury will also be directed that evidence concerning drug dealing and firearms cannot be used for other purposes; that whether it gives the evidence about such matters the significance that the Crown asks it to place is a matter for it; but that such evidence cannot be used to reason that because Mr Gatt behaved in a certain way on other occasions, when he was involved in drug supply and carried firearms, he must have shot Bassil Hijazi on 29 July 2013, or must then have been involved in a joint criminal enterprise to shoot him. 16. The jury will also be directed that it must not use such evidence to reason that Mr Gatt is the type of person who would commit the murder he has been charged with and that it cannot punish him for other criminal conduct attributed to him, by finding him guilty of murder, that not being the Crown's argument and further, that being contrary to law and each juror's duty not to use the evidence for a purpose other than the specific basis for which it is relied upon by the Crown. 17. I did not accept that the receipt of the disputed evidence, as well as the evidence which reveals Mr Gatt's actual involvement with drugs and firearms, gave rise to a real risk that the jury would not understand or apply such directions. Nor that the result of the admission of the disputed telephone calls, in which neither drugs nor firearms are discussed, directly would give rise to, or increase such a risk. ********** 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