R v Gatt (No 9) [2018] NSWSC 501

Supreme Court New South Wales

Medium Neutral Citation: R v Gatt (No 9) [2018] NSWSC 501 Hearing dates: 20 April 2018 Date of orders: 20 April 2018 Decision date: 30 April 2018 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Application to exclude evidence refused. Catchwords: CRIMINAL LAW – evidence – application to exclude evidence received about a shooting under s 137 of the Evidence Act – whether there is a risk of unfair prejudice to accused - application refused – reasons Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: R v Gatt (No 7) [2018] NSWSC 489 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. At the conclusion of Mr Gatt's evidence another application was made under s 137 of the Evidence Act 1995 (NSW) to exclude from the jury's consideration of the Crown's circumstantial case, the evidence which had been received about the Hudson Street shooting, which had been admitted over objection: see R v Gatt (No 7) [2018] NSWSC 489. 2. The application was made because in cross-examination it had been put to Mr Gatt that it was he who had fired the murder weapon at Hudson Street. 3. It had to be accepted, I was satisfied, that Mr Gatt's decision to give evidence had changed the position which arose for consideration when the earlier ruling about the evidence as to the Hudson Street shooting was made. 4. I refused that application, however, for the following reasons. 5. The case advanced for Mr Gatt was that this questioning had established that it would be unfairly prejudicial to Mr Gatt, for the evidence to remain a part of the circumstantial evidence left for the jury to consider. Initially the Crown's position had been that it would not advance to the jury that the murder weapon had been fired by Mr Gatt at Hudson Street, but then in cross-examination it was put to him that it was he who had fired the weapon. 6. In the result, it was argued, that the jury could not reach a concluded view beyond reasonable doubt that Mr Gatt had fired the gun at Hudson Street and therefore the evidence should be excluded. It was also argued that there was a danger that the jury would conclude that it was Mr Gatt who fired the gun at Hudson Street because of unreasonable inferences based on insufficient evidence, which was incapable of allowing a proper conclusion to that effect to be arrived at. 7. The Crown opposed the application. Its position was that there is no test that a jury has to be satisfied about a circumstantial item of evidence beyond reasonable doubt, before it is utilised, or that they should otherwise ignore it. It also submitted that while the evidence did not establish that Mr Gatt fired the murder weapon at Hudson Street, on all of the evidence, including in relation to the Hudson Street shooting, the Crown was entitled to submit that it was Mr Gatt who fired that gun on 29 July 2013. But the Crown would not submit that the Hudson Street evidence established that it was Mr Gatt who shot the gun on that occasion. 8. Mr Borg's evidence include the murder weapon belonged to Mr Gatt; that was one of the weapons that he owned and carried when they dealt drugs together; that it was he who had fired that gun at Bassil Hijazi on the night he was murdered; and he had disposed of it after the murder. In cross-examination, amongst many other things, Mr Borg denied that the murder weapon belonged to him; that he had fired it at Hudson Street, or on the night Bassil Hijazi was murdered; or that he had it in his possession on 5 July 2013, when he ran away from police when Mr Gatt's van was stopped for a random breath test. 9. Mr Gatt's evidence contradicted all these parts of Mr Borg's evidence. 10. Mr Gatt's evidence included that the murder weapon belonged to Mr Borg; that it was he who had shot Bassil Hijazi with that gun; Mr Borg had owned that gun and for a considerable time before the murder and had disposed of it afterwards; he had a nickname for that gun and had carried it often, but they had agreed that he would no longer carry it, after the van Mr Gatt was driving on 5 July 2013 had been stopped by police and Mr Borg, who was sitting in the passenger seat, had given the police officer his licence and had run away, while it was being checked, because he was fearful of this gun being found on a police search; that he had not known that Mr Borg was carrying the gun on the night that Bassil Hijazi was murdered, while they were together supplying drugs to their customers; that they did not know that Bassil Hijazi was at the carpark at Bexley; that someone called to them and when they approached the car Mr Gatt, who was behind Mr Borg, saw a gun pointed at them; that Mr Borg then pulled out his gun and fired it repeatedly, although Mr Gatt believed that the other gun had also been fired. 11. In the light of Mr Gatt's evidence, when considered together with all of the other evidence which the jury will have to consider, I was satisfied that the evidence about the Hudson Street shooting was not unfairly prejudicial to Mr Gatt. 12. The position then was that if all of Mr Gatt's evidence was accepted, he would be acquitted. If his evidence was not accepted, that it was Mr Gatt who fired the gun at Hudson Street was not established, but the evidence as to that shooting was still relevant and capable of supporting the inference that it was Mr Gatt who fired the gun used to murder Bassil Hijazi on 29 July, rather than Mr Borg. 13. I was also satisfied that the disputed evidence still had real probative value. 14. It would still have to be considered together the other direct and circumstantial evidence by which the Crown advanced its case, including the evidence which otherwise established that Mr Gatt' had a s connection to the gun,. 15. As to the unfair prejudice said to have resulted from the proposition put to Mr Gatt that he had fired the gun at Hudson Street it was necessary to take into account that the jury was to be directed as to how they should approach the assessment of the evidence about Mr Gatt's involvement with drugs and firearms. That included an explanation that counsel's questions were not evidence; that witnesses gave their evidence by answering the questions asked of them by counsel; that in some cases counsel had asked a direct question and in other cases the question had been asked by counsel putting a proposition to the witness and the witness being invited to agree with it. 16. The jury would also be directed that the position was that if the witness agreed with the proposition put, then there is evidence according to the proposition. If the witness did not agree, just like when a witness answers a question no, then the proposition put to the witness does not become evidence. Proof of that matter then had to come from elsewhere in the evidence. 17. It followed that the fact that Mr Borg had been asked whether he had fired the shots at Hudson Street by way of a question, rather than in the form of the proposition which was put to Mr Gatt in cross-examination, did not alter the result that they had each denied having been the shooter, as the jury would understand, given this explanation. 18. The jury was also to be told that the Crown did not submit that it was Mr Gatt who had fired the shots at Hudson Street, but that it could use that and the other circumstantial evidence relied on, together with the direct evidence, to resolve the issues which did lie between the parties. They would also be directed as to the use which could and could not be made of any of the evidence about Mr Gatt's involvement with drugs and firearms. 19. In the result, I was not persuaded that the balancing exercise required by s 137 could result in the conclusion that the probative value of the disputed evidence outweighed the danger of unfair prejudice to Mr Gatt. 20. Given all of the evidence, including that given by the accused as to his involvement with drug supply and firearms, his denial in cross-examination that he had fired the shots at Hudson Street did not give rise to the risk of unfair prejudice, for which he contended. 21. Nor was I satisfied that this proposition, having been put to Mr Gatt as it was, gave rise to the risk that the jury would not be able to adhere to the directions which they would be given, as to what of the parties' cases were; how the answers to propositions put in cross examination had to be approached; or what use they could make of the evidence about Mr Gatt's involvement in drug supply and access to and use of firearms, including the evidence as to the prior use of the murder weapon at Hudson Street.