R v Gatt (No 10) [2018] NSWSC 526

Supreme Court New South Wales

Medium Neutral Citation: R v Gatt (No 10) [2018] NSWSC 526 Hearing dates: 20 April 2018 Date of orders: 20 April 2018 Decision date: 30 April 2018 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Direction sought refused. Catchwords: CRIMINAL LAW – practice and procedure – direction sought as to competing evidence – factual issue – direction sought refused Cases Cited: Burrell v Regina [2009] NSWCCA 163 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 course of the accused's address a direction was sought, which the Crown opposed, that "to convict of murder the Crown must prove either that he fired the gun or that he held a gun beyond reasonable doubt." 2. It was argued that: "Clearly in my submission the former is necessary. If the Crown case is primary position is that he fired the gun, then that fact needs to be proved beyond reasonable doubt, I submit, but in the fallback position that has been offered to the jury, well, if you can't decide whether he shot him or not, you can still convict on joint criminal enterprise. The primary fact which is pointed to, and which I submit would need to be proved beyond reasonable doubt to lead to a conviction on the alternative basis is that he was holding a gun at the time that the fatal shot was fired." 1. I refused to give that direction being satisfied that, given the competing evidence of Mr Borg and the accused on this and other issues and the alternative basis on which the murder charge was advanced, which the jury must consider, it was unnecessary and potentially confusing to give such a direction, as was the conclusion reached in Burrell v Regina [2009] NSWCCA 163 at [93] – [103]. 2. That was because the question of whether both the accused and Mr Borg were carrying a gun on 29 July 2013, when Bassil Hijazi was murdered, was one of a number of factual disputes arising from the evidence given by Mr Borg and the accused, which the jury will have to consider, in determining whose evidence as to what had happened on 29 July 2013 will be accepted and how, in the result, the question of whether the Crown has met the onus which falls on it to prove beyond reasonable doubt the elements of murder and manslaughter which arise for its determination, will be resolved. 3. I was satisfied that while it suited the accused's forensic purpose to isolate this factual issue, the jury's process of reasoning about what the evidence established about who it was who used the murder weapon and whether both the accused and Mr Borg were armed, did not permit the evidence about this issue to be considered in isolation from the other evidence on which the Crown relied, in the way for which the accused contended. Nor did it require that the jury to treat this factual issue as indispensable to what it had to resolve, given the way in which the Crown advanced its case, including by reference to the circumstantial evidence about the accused's access to and use of guns including the Beretta which Mr Borg said he produced on 29 July 2013; and which was later found in the accused's possession; and on which DNA connecting the gun to the accused was found. 4. Nor could there be any certainty as to the process of reasoning which the jury would follow, in respect of this factual issue, given the direction which it will have to be given as to its obligation not to consider the evidence in a piecemeal fashion, but as a whole. 5. In the result, the direction sought had to be refused, no matter how the accused intended to advance his case, as to the importance of this evidence to the Crown's case and the jury's deliberations.