Director of Public Prosecutions v Andrew Baker (Ruling No 5)
[2023] VSC 197
•11 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0094
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ANDREW BAKER | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9–10 March 2023 |
DATE OF RULING: | 11 March 2023 |
CASE MAY BE CITED AS: | DPP v Andrew Baker (Ruling No 5) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 197 |
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CRIMINAL LAW – Ruling – Accused charged with murder – Admissibility of lies and other conduct by the accused as post-offence incriminating conduct – Whether prosecution entitled to rely on evidence of incriminating conduct in proof of an unlawful killing as well as murderous intent – Whether intractably neutral – Evidence admitted with exceptions – Jury Directions Act 2015 (Vic) ss 19, 20 – DPP v Andrew Baker (Ruling No 6) [2023] VSC 198R – DPP v Lyons & Lyons (Ruling No 4) [2018] VSC 297 – R v Ciantar (2006) 16 VR 26 – R v Gojanovic (No 2) [2007] VSCA 153 – Brooks v R (2012) 36 VR 84 – Chalmers v R (2011) 37 VR 464.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Dickie with Ms N Deltondo | Office of Public Prosecutions |
| For the Accused | Mr J Saunders with Ms S Thomas | Tait Lawyers |
HER HONOUR:
Introduction and background
The accused man, Andrew Baker (‘the accused’), has been charged with the murder of Sarah Gatt (‘S Gatt’). The Crown closed its case after 16 days of evidence, with the last of that evidence being heard by the Court on Thursday 9 March 2023.
The Crown case is circumstantial, and the factual background of the case is complex and lengthy. Briefly stated, however, the key allegations are as follows:
(a) The Crown claims that the accused violently killed S Gatt sometime between 19 April 2017 (when S Gatt is known to have still been alive, as confirmed by taxi footage) and 23 April 2017 (when the power to S Gatt’s unit at 2/57 Lambeth Street, Kensington (‘the Lambeth St premises’) appears to have been switched off) (‘the relevant charge period’);
(b) The Crown places emphasis on the power switching off just after midnight on 23 April 2017, because it remained off until on 10 August 2017 which is likely to have coincided with when the accused and others went there in August (‘the August revelation visit’);[1] and it therefore appears unlikely that anyone was living at the Lambeth St premises over that intervening period, despite those premises being S Gatt’s home;
[1]A term coined during oral submissions before me at trial, and which was used as a convenient shorthand to describe the accused’s ‘discovery’ of S Gatt’s body in the bathtub together with associates Justin Gabriele and Natalie Dibnah (and, later, Dimitrios Andrianakis) at the Lambeth St premises on or about 10 August 2017; refer, eg, Amended Summary of Prosecution Opening dated 13 December 2021, 19 [67] (‘SPO’); Transcript of Proceedings, Director of Public Prosecutions v Andrew Baker (Supreme Court of Victoria, S ECR 2021 0094, Jane Dixon J, 10 March 2023) 1763 [26]–[28] (‘Transcript’).
(c) The accused and S Gatt had been in an on-and-off relationship for several years. The Crown says that the relationship was turbulent and, at times, violent. On past occasions, S Gatt had made police reports about the accused’s violence towards her. Between 2014 and 2017, the accused periodically resided with S Gatt at the Lambeth St premises;
(d) In 2016, S Gatt met a woman named Leona Rei-Paku (‘Leona’), and the pair developed a romantic relationship. That relationship was also turbulent, and Leona was also sometimes violent towards S Gatt;
(e) Despite her relationship with Leona, S Gatt also remained in her on-and-off relationship with the accused. The Crown alleges that the accused was jealous of S Gatt’s relationship with Leona, and of other men with whom S Gatt had contact from time to time; and
(f) On 3 January 2018, police attended the Lambeth St premises wanting to speak with S Gatt, and discovered her corpse in the bathtub of the upstairs bathroom. The positioning of the corpse was described in the Crown’s Summary of Prosecution Opening as follows:
Ms Gatt’s body was in a state of extreme decomposition in the bathtub. She was lying on her back with her head turned to the left. Her head was buried under property. Her left arm ran below her left hip. Her right arm was bent with her hand close to the front of her neck. Her legs were bent, with her knees uppermost. Her body was on top of a large assortment of property. She had other items piled around her.
Ms Gatt’s body was clothed on her upper body. There were pants and underpants down below her knees. A lotion bottle lay on her exposed groin. She had no footwear on her feet. A power cord, connected to a lamp that was on the bathroom floor, ran between her legs and under her buttocks at her left side and protruded up and over the edge of the bath at her right side. A desk lamp lay across her neck and a hairdryer and a small plastic basket were on her chest. The power cord for the hairdryer ran underneath Ms Gatt’s neck from her right side.[2]
[2]SPO (n 1) 23 [95]–[96].
The Crown filed a Notice of Evidence of Incriminating Conduct dated 2 August 2021 (‘the Crown’s notice’), which complies with the notice provisions under s 19(1) of the Jury Directions Act 2015 (Vic) (‘JDA’). I have previously ruled, in a preliminary way, on two items of conduct listed in the Crown’s notice and relied upon by the Crown as post-offence incriminating conduct (‘POIC’) in this case (‘Ruling No 3’).[3] Therefore, details of the Crown’s notice, and the relevant provisions of the JDA, are set out more fully in Ruling No 3, and are not repeated here. The Crown’s notice is also attached to Ruling No 3 as ‘Annexure A’.
[3]DPP v Andrew Baker (Ruling No 3) [2022] VSC 706 (‘Ruling No 3’).
I have considered all of the items of conduct detailed in the Crown’s notice, and must now make a final determination, on the whole of the evidence, to decide whether the Crown should be permitted to rely upon those items as incriminating conduct on the charge of murder. I communicated the outcome of my decision to the parties in a preliminary way via email on 11 March 2023, as foreshadowed during discussions with counsel when the matter was argued in the absence of the jury at the conclusion of the Crown case. These are my written reasons for that decision.
In preparing these reasons, I also note that my decision about the POIC in the Crown’s notice preceded my decision about the Defence’s no-case submission,[4] and had ramifications for my determination of the no-case submission.
[4]Refer to my ruling in DPP v Andrew Baker (Ruling No 6) [2023] VSC 198R (‘Ruling No 6'), which should, to the extent possible, be read together with these reasons.
Crown submissions
On 10 March 2023, the Crown submitted that it should be permitted to rely upon the categories of evidence outlined in its notice as incriminating conduct.[5] It was said that the alleged lies and conduct of the accused are ‘quite extraordinary’[6] in the context of the other evidence adduced at trial.
[5]Director of Public Prosecutions, ‘Outline of Prosecution Submissions on Incriminating Conduct & No Case Submission’, Submission in Director of Public Prosecutions v Andrew Baker, S ECR 2021 0094, 10 March 2023, 1 [1] (‘Prosecution Submissions’). These submissions were expanded upon by Mr Dickie at trial.
[6]Ibid 1 [2]; Transcript (n 1) 1843 [10]–[11].
The Crown submitted that the jury could properly find, based on evidence led, that the accused went to significant lengths to conceal S Gatt’s death, and distance himself from her death, because he was aware that he had committed an extremely serious crime. It was further submitted, with reference to the High Court’s decision in The Queen v Baden-Clay,[7] that the jury would be entitled to use the POIC together with other circumstantial evidence led at trial to find that the accused killed S Gatt, and in doing so, held the intent necessary for murder.[8]
[7](2016) 258 CLR 308 (‘Baden-Clay’).
[8]Prosecution Submissions (n 5) 1 [3].
The Crown referred the Court to certain relevant authorities on lies and other POIC, as well as the relevant tests under the JDA.[9] In applying those principles to this case, the Crown submitted that:
[9]Prosecution Submissions (n 5) 2 [4]–[6] (citations omitted).
(a) The circumstances of S Gatt’s body being left in the manner that it was (‘humiliated and undressed’) bespoke murderous intent; and that, based on this alone, it would be open in the circumstances for the jury to be satisfied beyond reasonable doubt that S Gatt was murdered;[10]
(b) There was other evidence consistent with the accused having acted with murderous intent, including his intense and controlling passion towards S Gatt and jealousy of others; his abrupt cessation of contact with her; and the timing of her death being proximate to when she was spending time with Leona;[11] and
(c) There was no evidence that, if the accused killed S Gatt, he did so with anything less than murderous intent,[12] given the position he maintained in his records of interview (‘ROIs’) with police in which he denied being present or involved in S Gatt’s death in any way.[13]
[10]Ibid 2 [7].
[11]Ibid 2 [8].
[12]In reply, Mr Saunders for the Defence suggested that this language – taken from the Prosecution Submissions (n 5) on the topic – bespoke a reversal of the Crown’s onus of proof; although I also suggested that it may, rather, be aimed at capturing what was said by the High Court in Baden-Clay (n 7). See Transcript (n 1) 1861–2.
[13]Prosecution Submissions (n 5) 2 [9].
Items (b) and (r) of the Crown’s notice
At the close of all the evidence at trial, Mr Dickie did not press reliance on item (r) of the Crown’s notice (referable to the accused’s claim that the power was on at the Lambeth St premises when he attended in August 2017); and limited the Crown’s reliance on item (b) (referable to the accused’s text messages to Leona and attempted contact with her between 21 April and 17 May 2017).[14] The Crown did, however, maintain its reliance on Leona’s evidence that – after she last saw S Gatt – she tried to ascertain her whereabouts from the accused, who informed her that S Gatt was in a psychiatric hospital and would be discharged on Mother’s Day, at which time they could organise a barbeque together.[15]
[14]Transcript (n 1) 1767–70, 1849–53.
[15]Transcript (n 1) 1849–53.
Items (b) and (r) accordingly need not be determined further in this ruling, save for the aforementioned information allegedly provided by the accused to Leona regarding S Gatt’s whereabouts, which is an aspect of POIC that can be treated as already covered by item (c) of the Crown’s notice (namely, lies about S Gatt being in hospital).
Remaining Crown’s notice items
The Crown did press reliance on the remaining items of conduct detailed in its notice.
Mr Dickie submitted that those remaining items referred to in the Crown’s notice are reasonably capable of being viewed by the jury as incriminating conduct. There are, it was said, different ways in which the alleged conduct of cover-up, concealment or false trail could be characterised;[16] but much of this conduct was interlinked, such as:
[16]Ibid 1768.
(a) The alleged lies with respect to S Gatt being in a psychiatric hospital which, on the Crown case, was a ruse commenced soon after S Gatt was killed in order to explain her absence (item (c) of the Crown’s notice);
(b) The various steps taken by the accused to distance himself from S Gatt and the crime scene at the Lambeth St premises, which are consistent with the same ruse that had been started from a very early stage (and see, for example, items (o) and (p) of the Crown’s notice); and
(c) Contact with a phone number registered to an acquaintance of the accused, Mr Giuseppe Riggio (‘the 802 number’), via text messages (item (d) of the Crown’s notice), wherein the accused continued to maintain the ruse that S Gatt was still alive and in a psychiatric hospital. Mr Dickie stressed that this item of conduct in particular was highly incriminating, with there being no reason for the 802 number to have been used in the manner that it ultimately was by the accused.[17]
[17]Ibid 1843.
The Crown pointed out that – even on the accused’s own version of events – after he saw S Gatt’s body during the August revelation visit, he still tried to maintain the ruse that she was in a psychiatric hospital to divert attention away from the fact that, on the Crown case, he was involved in the killing.[18]
[18]Transcript (n 1) 1768–9.
The text messages to the 802 number after that juncture stand out prominently, with the accused showing police those messages early in his recorded interactions with investigating authorities, seeking to suggest that he had been in contact with S Gatt and thought she was in a psychiatric hospital.[19]
[19]Ibid.
When he was interviewed by police, the accused initially denied going to the Lambeth St premises at all after he last saw S Gatt (refer item (o) of the Crown’s notice). Later on, he admitted going there in August 2017 (i.e. the August revelation visit), but denied realising the body in the bathtub was S Gatt’s when he saw it (and in this regard see, for example, items (p) and (j) of the Crown’s notice). Subsequently, he admitted that he knew the body was S Gatt’s when he first saw it in the bathtub, by reason of noticing identifying characteristics such as a unicorn tattoo on the left breast. It was said by the Crown that these answers strengthened its arguments about the importance of the accused’s conduct connected to the 802 number and, more broadly, about the interlinked nature of the POIC.
The Crown thus argued that if all the different items of POIC it relies upon were each taken in isolation, they might not have the probative value contended for by the Crown; however, when properly taken together in the broader factual and evidentiary circumstances of this case, the tenor of the POIC contended for by the Crown was altogether more significant.
Defence submissions
Item (a) of the Crown’s notice
Ms Thomas submitted that the facts of the accused leaving Kensington and ceasing contact with S Gatt in April 2017 are intractably neutral as between the Crown scenario (that the accused ceased contact with S Gatt because he killed her) and the alternative: namely, that if he did cease contact with her at that time, as opposed to contacting or trying to contact her on Leona’s phone, it was because the relationship had broken up and he had accepted that fact. Ms Thomas placed particular reliance on the accused’s phone records which were adduced at trial, to variously argue that:
(a) The evidence on this issue is vague, and it was far from clear exactly when the accused did cease contact with S Gatt, and whether that cessation lined up temporally with her death;
(b) The various evidence of the pair’s relationship, and the pattern of the accused’s life at the time of and leading up to the relevant period, suggested that their union was ‘on and off’,[20] with the accused sometimes spending time with S Gatt and other times returning to Brunswick when they had a fight; and
(c) The Crown could not place the accused’s phone anywhere except Brunswick and Parkville during the four-day period within which S Gatt was said to have been killed.
[20]Transcript (n 1) 1788 [30]–[31].
Item (c) of the Crown’s notice
Ms Thomas submitted that the accused’s comments referring to S Gatt being in a psychiatric hospital were not of great assistance to the Crown in terms of incriminating conduct. In the Defence’s submission, those comments relevantly comprised:
(a) A comment made to an acquaintance of the accused, Ahmed Abdellatif (‘Ahmed’), at 26 Mountfield Street, Brunswick (‘Mountfield St premises’) before 19 April 2017 when S Gatt was still alive;
(b) A comment made to the accused’s housing caseworker, Christine Downing, on or around 4 May 2017;
(c) A comment made to the accused’s regular GP, Dr Edmund Poliness (‘Dr Poliness’), on or around 10 May 2017; and
(d) To a lesser extent – a comment made at some more indefinite time to another acquaintance of the accused, Justin Gabriele.[21]
(e) With respect to Ahmed’s evidence, Ms Thomas focussed strongly on the fact that – when cross-examined and re-examined on the topic – Ahmed recalled the accused first telling him S Gatt was in a psychiatric hospital about one week before Ahmed moved out of the Mountfield St premises; and that Ahmed also said he moved out between 17 and 19 April 2017. Therefore, the Defence submitted that the accused’s first mention of S Gatt being in a psychiatric hospital occurred before the period in which the Crown said she was killed (and, indeed, before the last confirmed sighting of her[22] and ignoring, for this purpose, the ‘various stories’ given by Leona as to when she last saw S Gatt).[23]
[21]In the Defence’s submission, Justin’s comment that the accused showed him a text message which seemed to be from ‘an institution’ was unclear and equivocal, and could not be pinned to a particular date (it might even have happened in 2016 rather than 2017). When prompted from the bench, Ms Thomas accepted the proposition that with respect to Justin’s recollection that the verbal explanation he was getting from the accused all along was to the effect that S Gatt was in a psychiatric hospital: Transcript (n 1) 1773.
[22]Being, in the Defence’s submission, 3am on 19 April 2017 when S Gatt signed her police statement, Transcript (n 1) 1775 [7]-[11]
[23]Ibid 1775 [8], noting that the accused was in hospital between 14 and 17 April.
Ms Thomas submitted that the jury could not ignore what Ahmed said as to timing. This fact could be connected to chronological evidence that between 11–18 April 2017 S Gatt was not seen on the phone records adduced at trial to have used her mobile phone at all;[24] that between 10–18 April 2017 the power usage at the Lambeth St premises suggested it was not being occupied by S Gatt (or anyone else); that in the early hours of 19 April 2017 S Gatt and Leona took a television and other items from the Lambeth St premises back to Leona’s flat in Maribyrnong; and that Leona said at the time S Gatt would move in with her. From this, Ms Thomas submitted that the jury could infer S Gatt was with Leona in the period 10–18 April 2017.
[24]Ms Thomas also noted that the accused suggested Leona’s phone was shared by both S Gatt and Leona: Transcript (n 1) 1778 [24].
Ms Thomas submitted that the accused suggesting S Gatt was in a psychiatric hospital was thus equally consistent with him having invented an excuse to explain why she was not around anymore (i.e. because she had moved in with Leona) – not because he killed her. In other words, it was equally open for the jury to find that the accused had commenced, in mid-April 2017 or earlier, to tell people S Gatt was in a psychiatric hospital, as an excuse – related to the accused’s feelings of shame and embarrassment – for her not being with him. Therefore, the evidence with respect to item (c) of the Crown’s notice – which started, in the Defence’s submission, before S Gatt was dead – could not be viewed by the jury as amounting to incriminating conduct with respect to an unlawful killing.
Item (d) of the Crown’s notice
In respect of the text messages to and from the 802 number, Ms Thomas argued that there was no evidence the accused did not regard those messages as genuine.
When questioned by the Court about the fact that – by the time the accused had sent the last of those messages to the 802 number querying why S Gatt was apparently messaging him, he had already seen the body in the bathtub (and on his evidence knew it was her) – Ms Thomas submitted that Leona, who is an alternative suspect, had also seen the body, but did not tell anyone S Gatt was dead; and similarly continued to talk (and write a diary entry) about her as if she was still alive.
Ms Thomas thus argued that the instant case was different to other situations in which an unlawful killing was not in dispute and no alternative suspect had been identified. Here, the identity of the killer is in dispute, and the Defence posit a clear alternative suspect. So, for example, the Crown’s reliance in this case on the sexualised positioning of the body in the bathtub as evidence that S Gatt was killed by somebody who was in a sexual or intimate relationship with her could be sheeted home equally to Leona.
Item (i) of the Crown’s notice
In respect of the accused’s alleged failure to contact police, and lies about contacting them, the Defence advanced a relatively bare submission that neither Leona nor the rest of the ‘bathroom crew’[25] reported S Gatt missing either, or indeed reported her body to police after it had been found.
[25]I understood this to be a collective reference to associates Leona, Justin, Natalie Dibnah and Dimitrios Andrianakis.
Items (k), (l), (m) of the Crown’s notice
The Defence advanced a collective submission with respect to these items of conduct.
Ms Thomas submitted that the Crown could not prove a violent death had occurred in this case, noting that the evidence of Crown pathologist Dr Joanna Glengarry and police forensic officer Mr Mark Gellatly was unable to determine a cause of death. The accused’s assertions about a violent death were submitted to be mere speculation and rumination following his observations at the Lambeth St premises, which could not be married up to any specific expert evidence, and were therefore not capable of constituting incriminating conduct.
More specifically:
(a) In respect of item (m) (see also item (n)) of the Crown’s notice: the accused’s ‘outlandish’ comments about S Gatt’s head being missing all occurred after he had been to the Lambeth St premises and seen the body; and
(b) In respect of item (k) (and also item (l)): the accused was invited in police interviews to opine on what might have happened, and offered a number of scenarios – from cutting a finger, to an artery spraying onto the wall[26] – which the Crown improperly sought to fit to the facts of this case.
[26]I interpolate (as these references were not explicitly invoked by Ms Thomas during oral submissions) that, in the accused’s first ROI, he described seeing blood spatter in the upstairs hallway of the Lambeth St premises ‘[l]ike somebody’s kicked somebody in the side of the head or something and blood’s come out of their nose and it’s gone over the wall or something like that’ (Q 1186); or ‘somebody’s cut a main artery or something and it’s just splurted out’ (Q 1187). He explained that he had seen similar blood patterns when working in abattoirs. Later in that same ROI, the accused described the broken glass of the window in the bathroom at the Lambeth St premises ‘like somebody’s rammed somebody’s head in the glass and it’s just left the circle and … hit the glass that hard it shattered … and I looked out that window when I was up there and all the glass is on the grass downstairs’ (Q 1646). He then went on to describe the body in the bathtub as not having a head (Q 1648). The accused repeated this ‘headless’ reference numerous times in his police interviews. Justin also gave evidence that the accused told him the body was missing its head. In his second ROI, the accused was asked why he thought the head was cut off, and responded: ‘Cause there was no head. It was leaning against the bath, there was no head there. If there was a dead body and it was my missus, I would recognise it was her if she had a head – yeah?’ (Q 750). The references to the body in the bathtub missing a head are of a different character to the other descriptions of the body and the crime scene – distinguish, in this regard, items (k), (l), (m) and (n) of the Crown’s notice. Refer, generally, to Exhibit P66 (‘First record of interview with Andrew Baker commencing 4 January 2018 at 9.28am’) (‘Exhibit P66’) and Exhibit P69 (‘Second record of interview with Andrew Baker, commencing 17 September 2018 at 9.11am’) (‘Exhibit P69’) in respect of the above references.
Remaining Crown’s notice items
Ms Thomas developed a global submission in respect of all POIC relied upon by the Crown, which was that there was an alternative explanation, scenario or motive (beyond unlawful killing) for such conduct: namely, the accused’s desire to continue receiving S Gatt’s Centrelink benefits in order to fund his drug habit.[27]
[27]Ms Thomas rightly pointed about that the Crown case did not assert Centrelink as an alternative motive for murder see Transcript (n 1) 1782–4.
When later asked by the Court if it was a problem that the accused had previously claimed not to know it was S Gatt’s body in the bathtub when he saw it – but then subsequently explained how he had identified the body as hers[28] – Ms Thomas replied that this had to be understood in the context of the accused having a continuing interest in receiving S Gatt’s Centrelink benefits; that the accused was a heavy heroin user, with access to more of her money; and so had every reason to either ‘forlornly hope’[29] the body was not S Gatt’s (and convince himself and be in denial about that fact), or else suspect it was her but still have an interest in it not being detected so he could continue to receive her Centrelink payments.
[28]And see, eg, in this regard item (j) of the Crown’s notice.
[29]Transcript (n 1) 1786 [9].
Ms Thomas raised other alternative explanations for the accused’s conduct, such as not wanting to tell anybody, or wishing to conceal the death, for fear of being blamed; and, as per above, stressed that others who were present at the Lambeth St premises at the time of the August revelation visit similarly did not notify police about the body in the bathtub until it was discovered in January 2018, and indeed lied to police initially about that fact.
When it was also raised with Ms Thomas that there was other evidence of the accused creating a false trail, apart from his comments about S Gatt being in a psychiatric hospital – such as telling police he spent his 50th birthday with her (item (q) of the Crown’s notice); telling police he reported her missing (item (i)); initially denying ever having gone back to the Lambeth St premises (item (o)); and generally distancing himself from the house (item (p)) – Ms Thomas nevertheless maintained that the body of evidence, including alleged POIC pertaining to the accused’s ‘psych ward’ comments, could not amount to incriminating conduct; and was, rather, intractably neutral.
Further oral submissions advanced by the Defence
On 10 March 2023, Mr Saunders advanced brief additional oral submissions before me concerning POIC, in the primary course of detailing his no-case submission.[30] Mr Sunders made two key points:
(a) The Crown case and its reliance on POIC was being advanced upon the basis of impermissible ‘bootstraps’ logic, and was predicated upon proof that an unlawful killing occurred, whereas the Crown would struggle to even prove that fact on the evidence. Mr Saunders submitted that – unlike some other cases, where there was an acknowledgement that death had occurred at the hands of a particular person – the Crown case here essentially rose and fell with the POIC, inasmuch as there was not much else for the Crown to meaningfully rely upon to prove the accused’s guilt; and
(b) Finally, the Defence argued that, should the Court ultimately accept that some or all of the POIC detailed in the Crown’s notice could properly go to the jury, it could only go to proof of an unlawful killing, and was incapable of proving murderous intent.
[30]And in respect of which see Ruling No 6 (n 4), especially at [34]–[71].
The Crown case
Before proceeding further, it is useful to set out some of the key aspects of the Crown case. This summary should be read alongside my reasons in DPP v Andrew Baker (Ruling No 6) (‘Ruling No 6’).[31]
[31]Ibid.
Relationship evidence
This aspect of the evidence comprises the intense (sometimes violent), on-and-off relationship between the accused and S Gatt; and his anger, hatred and jealousy about S Gatt ‘cheating’ on him with Leona or other rivals.[32] The evidence in this regard derives from several sources, including the police officers who responded to S Gatt’s 000 calls in the period December 2014 to December 2015 complaining about the accused’s treatment of her; the evidence of Crown witnesses, including friends and associates of the accused; letters and notes written to or about S Gatt by the accused; and statements made by the accused in his police ROIs. The nature of the pair’s relationship can be shown by the Crown to have continued, in that same general vein, more or less up until April 2017, when S Gatt disappeared from public view and was last seen alive.
[32]See, eg, Exhibit P66 (n 26) 202–3 Q 1833.
The evidence is similarly replete with references to the accused’s intense feelings about S Gatt; the fact that he regarded her as his wife and partner for life; and the fact that those feelings persisted after S Gatt’s disappearance and death (for example, in a letter written by the accused dated 13 June 2017, discussed in further detail in Ruling No 6).[33]
[33]See Ruling No 6 (n 4) 24 [65].
Significantly, Ahmed testified that the accused confided in him in the early months of 2017 that he frequently engaged in very violent arguments with S Gatt, leading to the accused staying on the couch or floor of the Mountfield St premises after such episodes. In his ROIs, in his various notes and letters, and in what the accused told his associates who gave evidence at trial, the accused was clearly very unhappy about S Gatt’s relationship with Leona; as indicated above, he described S Gatt as cheating on him with Leona, and with other men. On frequent occasions, the accused refers to Leona in derogatory terms as the ‘Kiwi bitch’ or the ‘lesbian bitch’.[34] He also mentions, in letters and notes, his sexual insecurity and inability to satisfy S Gatt; and the reasons why she might prefer other men or Leona over him. The accused frequently mentions that S Gatt only felt safe with him, and that he was her protector; and refers in his ROIs to S Gatt speaking of the risks to her from others, if the accused was not with her.[35]
[34]See, eg, Exhibit P69 (n 26) 139 Q 1391, 161 Q 1587.
[35]See, eg, Exhibit P66 (n 26) 48 Q 385, 68 Q 575, 194 Q 1750; Exhibit P69 (n 26) 24 Q 247–50.
Motive
There is evidence from which the jury could infer that the accused had a strong motive to murder S Gatt. Shortly before she went missing, it appears from the available evidence that S Gatt resumed her contact with Leona. The accused was an inpatient at the Royal Melbourne Hospital (‘RMH’) between 14–17 April 2017; but there is unchallenged evidence of S Gatt and Leona spending several hours together on the night of 18–19 April 2017 (‘the taxi night’), a part of which time was also spent with associate Zach Taha, who was invited by S Gatt to accompany her and Leona back to the Lambeth St premises. On Leona’s evidence, the meeting with S Gatt was a chance one, at Woolworths; S Gatt told her the accused was in hospital, and invited her back to the Lambeth St premises at that time. The course of the night led to S Gatt deciding to take a number of her possessions back to Leona’s house, and staying the night there; and Leona later taking steps to secure the Lambeth St premises to stop anyone else from getting in through the front door.
As already mentioned, the Crown case alleges that the accused was extremely jealous of S Gatt’s involvement with Leona and other men. In the context of the above, it is relevant that a letter postmarked 26 April 2017 and written by the accused was found inside the Lambeth St premises, under the kitchen table.[36] It contained two documents: a roughly written note relevantly stating ‘[t]hat fucken me over Sarah and I was only you felt safe with your folt wasting time knowing you photos & sript cutting all power to your house + gas’; and another letter addressed to ‘my Girl and Wife’, referring to ‘feel[ing] not wanted here with u & her I’m loser and u told me to leave So ill leave come back on friday’.
[36]Exhibit P55 (‘Postmarked envelope 26 April 2017 with letters/notes found inside’).
The accused’s 50th birthday was on 23 April 2017, and his close friend Mr Gabriele told the Court that the accused spent the day with him and was upset about not being with S Gatt; whereas the accused initially told police he saw S Gatt on his birthday, and spent the day with her. He later recanted that version of events, however, and said he spent his birthday with Mr Gabriele.
Opportunity
On the evidence before the jury, the accused knew how to access the Lambeth St premises without needing keys to the house, having lived there on-and-off for several years. The electricity account was held in his name, and he kept items of personal property there. The accused was also the nominee for S Gatt’s Centrelink benefits as at her putative date of death, which is indicative of the nature of the pair’s domestic arrangements. The accused was well known to neighbours as S Gatt’s partner, and as someone who would come and go from the Lambeth St premises, sometimes departing for periods after they had been fighting.[37]
[37]Refer, eg, to the evidence of Flavio Rinvenuto, Heather Gundry and Phillip Nelsson, contained respectively at Transcript (n 1) 395–414, 418–30, 859–79.
The accused is a large man, whereas S Gatt’s small stature and physically debilitated condition as at 18–19 April 2017 (i.e. the taxi night) was evident from in-car taxi footage played to the jury. It is open to a jury to infer that the accused was capable of exercising physical domination over S Gatt.
Regarding the putative date range within which S Gatt was killed, the Crown alleges that S Gatt was killed at some point on or about the relevant charge period: between the night of 18–19 April and 23 April 2017 when the power supply to the Lambeth St premises ceased and remained switched off until August 2017. The Crown relies on aspects of the accused’s behaviour after the relevant charge period as comprising implied admissions to having murdered S Gatt during that time; although Mr Dickie conceded that the Crown could not pinpoint a specific date of death, and that the indictment therefore particularises the offence as having allegedly occurred on or about the relevant charge period.
Circumstances of the way in which S Gatt’s body was found
The Crown emphasises the way in which S Gatt’s body was left in the bathtub – including the sexualised positioning of the body, with the underwear being pulled down, the lotion bottle between the legs and items piled on top of the body – which, the Crown argues, is inextricably linked to the killing and whoever carried it out.[38]
[38] Mr Dickie relevantly submitted (refer Transcript (n 1) 1845 [12]–[24]):
[T]his woman was found in a bathtub wrapped with various cords around her body; she had a bottle of lotion on top of her groin … She had her underpants pulled down, she had her shorts pulled down; she was left there … with a tampon attached to her little toe. This is not a woman … who went into the bath to take some drugs and overdosed in the bath. It’s not … someone has found this person, Your Honour, and thought, ‘Oh, she has died of a heart attack, or she has died of some other cause … and we’ll just take her upstairs and leave her in the bath in that condition’ …
The Crown also emphasises the nature of the crime scene at the Lambeth St premises, and the items found there – including blood visible immediately outside and inside[39] the bathroom where S Gatt’s body was found; a broken window and shower curtain; and items and broken crockery underneath the body and outside of the bathtub, some of which were bloodstained – as pointing to S Gatt dying not of a drug overdose, heart attack or some other natural cause, but rather as a result of a violent death.
[39]The submission in relation to blood inside the bathroom appeared to be a reference to apparent blood, rather than confirmed blood.
Consideration
I will now deal with the various items of POIC advanced by the Crown within the broader evidentiary framework previously described. Where appropriate, I will group certain items of incriminating conduct and deal with them together.
At the outset, I indicate that I have reached the conclusion that the conduct relied upon by the Crown in its notice does meet the applicable tests under the JDA on the basis of the evidence as a whole, being conduct which is reasonably capable of being viewed by the jury as evidence of incriminating conduct. Unlike some other cases in which POIC is relevantly in issue, here there is evidence in addition to the POIC itself which supports the inferences contended for by the Crown; namely, that the accused killed S Gatt unlawfully, and with murderous intent.[40] I consider that – when viewed in the context of this other evidence (including evidence of the way S Gatt’s body was positioned in the bathtub, and evidence of motive, in particular the degree and nature of the accused’s possessiveness and jealousy)[41] – the POIC is reasonably capable of being viewed by the jury as incriminating conduct in respect of the charge of murder. Pursuant to s 20(1)(b) of the JDA, the POIC of the accused needs to be seen in the broader evidentiary context of the Crown case as a whole, as I relevantly set out above.
Departing Kensington and ceasing contact with S Gatt[42]
[40]And see, by way of illustration, the discussion in R v Gojanovic [2007] VSCA 153, [36] (Ashley and Kellam JJA and Kaye AJA) (‘Gojanovic’)
[41]This is discussed further in Ruling No 6 (n 4) 24–6.
[42]Item (a) of the Crown’s notice.
I do not agree with the Defence’s submission that the accused’s conduct of departing Kensington and ceasing contact with S Gatt is ‘equally consistent’ with an alternative hypothesis that he did so because their relationship had broken down, S Gatt had entered a relationship with Leona, and the accused had accepted that fact. Whilst the relevant records may not definitively determine exactly when the accused ceased contact with S Gatt, there is evidence that the accused ceased contact or attempted contact with S Gatt in mid- to late April 2017; that the contact did not resume; and that the accused did not return to live at S Gatt’s house after the power turned off on 23 April 2017 (including the fact that the power was not switched on again until August 2017).[43] Such conduct must be viewed in the context of the evidence in this case as a whole, including:
[43]Refer generally to Mr de Villiers evidence.
(a) Evidence that the accused had not ‘accepted’ that his relationship was over, but rather maintained intensively possessive and jealous feelings about S Gatt; [44]
(b) The relationship and motive evidence discussed more generally above; and
(c) The interrelated body of evidence of incriminating conduct, including the fact that the accused told numerous people S Gatt was in a psychiatric ward. As will be discussed further below, it would be open to a jury to reject the suggestion that the accused maintained such lies because he was ashamed or embarrassed about the state of his relationship, on the basis that the extent of those lies and the nature of the ruse is disproportionate to concealing the end of his relationship out of feelings of embarrassment – particularly after the accused is known to have seen the body in the bathtub.
[44]Including as evidenced in things said to acquaintances, in letters/notes, and in the accused’s ROIs; see as described in detail in Ruling No 6 (n 4) [61]–[71].
I consider that it would be open to the jury to conclude that the only reasonable inference available is that the accused engaged in the relevant lies and conduct because he knew that he had killed S Gatt, and that he had done so with murderous intent.
The accused's text messages to Leona and attempted contact with her,[45] and lies about S Gatt being in hospital[46]
[45]As noted above, now in respect of information the accused provided to Leona regarding S Gatt’s whereabouts only: item (b) of the Crown’s notice.
[46]Item (c) of the Crown’s notice.
An interconnected aspect of the POIC referred to above is that – according to the testimony of witnesses called by the Crown – the accused variously referred to or explained S Gatt’s absence to others as follows:
(a) In April 2017, the accused told Ahmed that his partner was in a psychiatric hospital. In this regard, I note that – although Ahmed testified that he was told this information about a week or so before 17–19 April (at which time S Gatt was still alive) – it is open for the jury to find that Ahmed was mistaken about the relevant date;
(b) On 4 May 2017, the accused is noted to have told Ozanam House caregiver Anthony Buckley that S Gatt had variously been abusing him; had started using ice; had been in a lesbian relationship; and was currently in the John Cade ward at RMH;
(c) On 10 May 2017, Christine Downing (‘Christine’) of Ozanam House noted that the accused said he was sleeping rough, and had to leave his accommodation because ‘the friend he was staying with has been admitted to John Cade’.[47] On 7 August 2017, the accused also told Christine that he was still living at his girlfriend S Gatt’s house, and that she was in the John Cade ward at RMH. Further, in a 30 August 2017 telephone conversation, the accused was noted to have said that he was ‘still living at his ex’s, who is still in hospital for the next four weeks’;[48]
[47]Transcript (n 1) 712 [5]–[6].
[48]Transcript (n 1) 713 [16]–[17].
(d) On 10 May 2017, the accused told Dr Poliness (according to his notes) that S Gatt was in a ‘psych ward’;[49]
[49]Ibid 940 [27].
(e) Around July 2017,[50] the accused told his associate Dimitrios Andrianakis (‘Dimitrios’) that S Gatt was in a psychiatric hospital, and was due to come home soon. Also around this period (between July and September 2017), Dimitrios recalls a conversation in which the accused told him that S Gatt had made the accused her nominee for Centrelink payments, and that the accused could help Dimitrios out financially if need be;[51]
[50]Dimitrios Andrianakis was released from prison on 2 July 2017 and relevantly recalled: ‘[O]n the day I got released, probably the next day, two days later, I bumped into Andrew and Justin [in Brunswick]’, which is when he recalls having this conversation. Refer Transcript (n 1) 923-4, 930.
[51]Transcript (n 1) 924, 930.
(f) On 4 August 2017, the accused relevantly told Ronica Sanchez Atilano, a practice nurse who worked at the Living Room, that (according to her notes):
Partner is still hospitalised in psych ward. Recently she was permitted to use her phone and text Andrew. She will be released from psych ward in four weeks.[52]
[52]Ibid 913 [16]–[18].
(g) On 18 August 2017, the accused told Dr Marcus Weyland, a practitioner at the Brunswick Community Centre (‘Dr Weyland’), that he had moved from the Kensington area to stay with a friend. According to Dr Weyland’s notes, the accused told him that he had been ‘crying on the phone to his girlfriend’ who was ‘in the psych ward for [having used] too much ice’ for the previous eight months;[53]
[53]Ibid 965–6.
(h) In September 2017, the accused told his associate Trent Mitchell (‘Trent’) while they were both residing at Ozanam House that S Gatt was in a psychiatric hospital and had ‘run off with a lesbian’.[54] The accused told Trent that S Gatt had been in a psychiatric hospital for a few months;
(i) Mr Gabriele, the accused’s good friend, gave evidence that the accused told him S Gatt was ‘in a mental facility’ or ‘in a rehabilitation facility’ on account of her drug use.[55] Mr Gabriele described the accused as being ‘quite upset about it’, but that he also said S Gatt was getting better, things were going well, and that he was ‘basically just waiting for her to get out’.[56] Mr Gabriele said the accused would talk to S Gatt now and again, and was upset and confused. Mr Gabriele also mentioned making some enquiries on the accused’s behalf as to which psychiatric hospital S Gatt was in. Mr Gabriele referred to being shown a phone message that looked like it had come from a particular institution, and said that the message was about S Gatt coming out and getting better; and
(j) Leona gave evidence that she was told by the accused that S Gatt was in rehab and would be getting out ‘soon’, and ‘[s]omething to do with Mother’s Day’.[57] She referred to text messages in which the accused said S Gatt was in rehab. She later clarified that the accused said S Gatt was coming home on or around Mother’s Day, and Leona could see her then and they could have a barbecue together.[58]
[54]Ibid 187, 189.
[55]‘[A]t one time, he mentioned that she was now in a - in a mental facility or a – yeah – on ice and she was in a rehabilitation … A mental institution; you know, a rehab’: Transcript (n 1) 732–3.
[56]Ibid 733–4.
[57]Ibid 550 [8]–[9], [11]–[12].
[58]Ibid 554–5.
As is evident from the foregoing summary, the accused maintained that S Gatt was in a psychiatric hospital after his August 2017 visit to the Lambeth St premises (i.e. the August revelation visit), when he is known to have seen the body in the bathtub, and where there is evidence that he knew the body was S Gatt’s.[59] The continuation of these lies after the accused is known to have discussed the body in the bathtub during the August revelation visit may be used by the jury to rebut the suggestion that the accused maintained those lies to collect Centrelink payments, or out of embarrassment that S Gatt had left him for Leona. The accused’s conduct in this respect is, indeed, extraordinary;[60] and the jury would be entitled to consider that such conduct is wholly disproportionate to the accused merely feeling embarrassed, or wanting to collect S Gatt’s Centrelink payments. In this regard – although the Defence placed reliance on Ahmed positing a date before 19 April 2017 as the relevant time when the accused told him S Gatt was in a psychiatric hospital, embarrassment about breaking up with S Gatt would not seem to explain this conduct, bearing in mind that it was to Ahmed that the accused had confided about the difficulties in his relationship with S Gatt. There is also other evidence that the difficulties in this relationship were well known to friends and associates of the accused; hence his frequent overnight stays at the Mountfield St premises. The jury would also be entitled to consider that the accused’s conduct is inconsistent with how they might expect a person to act upon finding a dead body in the upstairs bathtub of the home of their intimate partner.
[59]Discussed in further detail in my ruling on the Defence’s no-case submission: refer Ruling No 6 (n 4).
[60]Refer Transcript (n 1) 1843 [10]–[11].
This material – in combination with the more general relationship, motive, opportunity and crime scene evidence discussed above – provides a foundation for the Crown to go to the jury and allege, similarly to the Crown case in DPP v Lyons & Lyons (Ruling No 4) (‘Lyons’),[61] that the accused told lies about S Gatt’s disappearance in order to conceal his involvement in her murder; and that he volunteered explanations for her being missing on a number of occasions, to a number of different people, as a form of diversion and cover-up.
[61][2018] VSC 297, especially at [37]–[50] (‘Lyons’).
Based on the whole of the evidence, I find that it would be open to the jury to conclude that the only reasonable inference is that the accused engaged in the relevant lies and conduct because he knew that he had killed S Gatt, and that he did so with murderous intent.
Accused taking others to the Lambeth St premises in August 2017,[62] and boarding up the window[63]
[62]Items (f) and (h) of the Crown’s notice.
[63]Item (g) of the Crown’s notice
The Crown further relies on evidence that the accused took various people to the Lambeth St premises in August 2017, under the pretence of cleaning the house for S Gatt’s return from the psychiatric hospital, but for the actual purpose of ‘discovering’ the body as part of a ruse to distance himself from her killing. This alleged incriminating conduct is interwoven with the accused’s lies about S Gatt being in a psychiatric hospital, and includes:
(a) The accused taking Mr Gabriele and Natalie Dibnah (‘Natalie’) to the Lambeth St premises to ‘discover’ the body (item (f) of the Crown’s notice);
(b) The accused inviting other persons (namely, Dimitrios and Leona) into the Lambeth St premises to show them the body (item (h)); and
(c) The accused boarding up the upstairs bathroom window at the Lambeth St premises and turning on the fan where S Gatt’s body was ultimately found (item (g)).
In respect of items (f) and (h), the Crown case is that the accused staged the finding of S Gatt’s body in the Lambeth St premises in August 2017 by taking friends Mr Gabriele and Natalie there. A bit later on, after Dimitrios also attended, the accused queried (in the presence of Mr Gabriele, Natalie and Dimitrios together) whether the body could be S Gatt’s. The Crown case is that the accused’s claim to have gone to the Lambeth St premises to clean the house in preparation for S Gatt coming home from hospital was, in fact, a staged attempt to divert suspicion away from himself. Mr Gabriele gave evidence that the accused spoke about organising a rubbish skip at the time of the August 2017 visit, but this did not eventuate.
The Crown also relies on evidence that the accused took Leona to the Lambeth St premises to see the body sometime after the August revelation visit, as described by Leona in her evidence (and to which see also item (h) of the Crown’s notice).
Further, the Crown refers to the accused and Mr Gabriele boarding up the window of the upstairs bathroom where the body was found. This was admitted conduct in the accused’s ROI; and was also described by Mr Gabriele in evidence. The accused, in his first police ROI, said they also duct taped the window to ‘stop the air going out’.[64]
[64]Exhibit P66 (n 26) 55 Q 448.
The Crown alleges that – although the accused admits he knew S Gatt’s body was in the upstairs bathtub of the Lambeth St premises at least as early as August 2017 – rather than report the matter to police, he engaged in lies and conduct to perpetuate the ruse that he had simply ‘stumbled’ upon the body in the presence of others, or otherwise aimed to delay or prevent the body from being found, which conduct includes boarding up the window and turning the fan on inside the bathroom. Those lies and conduct went specifically to the accused’s knowledge that S Gatt was dead, and that her body was in the upstairs bathroom of the Lambeth St premises at the relevant times.
When taken in combination with the other evidence adduced by the Crown at trial, I consider that it is open for the jury to conclude that the only reasonable explanation for the accused engaging in these lies and the conduct of boarding up the window was because he knew that he had caused S Gatt’s death, and that he had done so with murderous intent.
Further conduct and lies relating to a cover-up[65]
[65]Items (i), (o), (p) and (q) of the Crown’s notice.
The Crown relies on further conduct and lies told by the accused to police in his ROIs as part of an alleged cover-up to conceal his involvement in S Gatt’s death, including:
(a) The accused failing to contact police, and telling lies to police about contacting them regarding the body in the bathtub (item (i) of the Crown’s notice);
(b) The accused’s initial denials of having attended the Lambeth St premises at all (item (o));
(c) Claims by the accused of having only attended the Lambeth St premises once or twice (item (p)); and
(d) False claims by the accused to have spent his 50th birthday with S Gatt (item (q)).
When interviewed by police, the accused gave a number of versions as to the circumstances in which he last saw S Gatt. For example, he initially said he last saw her on his 50th birthday, and spent the day with her. This is against the background of the accused saying that he last saw S Gatt on Mother’s Day in 2017 (being 14 May), having been invited to attend the RMH with Leona; and alternately that he last saw her when he walked out on her, because she was cheating behind his back. The accused gave inconsistent accounts in his ROIs about whether he had been to the Lambeth St premises at all after last seeing S Gatt alive; and about how often he went there. The Crown also relies on the absence of any efforts made by the accused to report her missing to police.
Whilst it is true that others did not contact police after finding the body in the bathtub, the accused’s failure to do so must be seen in the context of all of the evidence in the case, including the fact that the accused and S Gatt were in a long-term, on-and-off relationship, and it was he who maintained the ruse about her being in a psychiatric hospital; that it was the accused who asked others to attend the Lambeth St premises to clean it in advance of S Gatt ‘returning home’ from the psychiatric hospital; evidence that the accused was aware the body in the bathtub was S Gatt; and other evidence of relationship and motive. The accused’s failure to call the police, and the lies told in his ROI and referred to in items (i), (o), (p) and (q) of the Crown’s notice, are interwoven with the alleged ruse, and may be viewed as attempts to further conceal his involvement in S Gatt’s murder.
The Defence also argued that one explanation for the accused’s failure to contact police and report S Gatt missing – or divulge the existence of the body in the bathtub – might have stemmed from a fear of being wrongly blamed for her death. It would, however, seem inconsistent with the intense love that the accused purported to hold for S Gatt, even after April 2017. In considering the evidence as a whole (including evidence that the accused maintained S Gatt was in a psychiatric hospital), the jury would be entitled to consider that the accused’s conduct in this regard was inconsistent with his avowed professions of devotion for S Gatt and that the extent of his conduct does not sit well with the accused merely being afraid of being wrongly blames.
I therefore consider that, when taken in combination with the other evidence adduced by the Crown at trial, it is open for the jury to conclude that the only reasonable inference is that the accused engaged in the relevant lies and conduct for the purpose of distancing himself from, and concealing his involvement in, S Gatt’s death, because of his awareness of having murdered her.
The accused’s claims to not know the body in the bathtub was S Gatt[66]
[66]Items (j) and (n) of the Crown’s notice.
In this regard, the Crown relies on the following items of incriminating conduct:
(a) The accused having pretended that the body in the bathtub was not S Gatt’s (item (j) of the Crown’s notice); and
(b) False claims by the accused in his ROIs and recorded conversations that the body in the bathtub was missing its head (item (n)).
The Crown case is that aspects of the accused’s attempts to cover up or create a false trail became more pronounced as time went on. Whilst he initially sought to distance himself from the Lambeth St premises – claiming that he had never been back there after breaking up with S Gatt – he subsequently admitted that he did return, and saw a body in her bathtub. However, he claimed that he did not know the body was S Gatt. This claim was elaborated upon by suggesting that the head was missing from the body and/or that the head was flattened.
When asked in his second police ROI what made him think the head was cut off, the accused relevantly responded:
Q750 Describe to me the neck area of the body. What made you think it was cut off?
A‘Cause there was no head. It was leaning against the bath, there was no head there. If there was a dead body and it was my missus, I would recognise it was her if she had a head – yeah?[67]
[67]Exhibit P69 (n 26) 74 Q 750.
A little later in the same ROI, the accused was asked and relevantly responded:
Q 1114 O.K. “No head”.
You think if it had a head it’d have hair and stuff, wouldn’t it?
Q 1115 Yep.
A It had no hair – yeah?
…
A I’m pretty sure the head wasn’t there – yeah?[68]
[68]Exhibit P69 (n 26) 111 Q 1114–15, 113 Q 1134.
The accused said in his earlier (first) ROI that he did not see any recognisable tattoos on the body, although it was wearing some of S Gatt’s clothing. However, further on in his ROI he admitted that he recognised the body in the bathtub as S Gatt’s when he saw it during the August revelation visit.
The alleged lies relating to the accused not recognising the body as S Gatt’s go to the accused’s knowledge that S Gatt was dead, and that her body was in the upstairs bathroom of the Lambeth St premises at the relevant times. References by the accused to the head being cut off or flattened are linked to denials of recognising the body; and provide a basis for the accused to justify or explain why he did not recognise the body as S Gatt’s at that time. When taken in combination with the other evidence adduced by the Crown at trial (including admissions to knowing or suspecting the body in the bathtub was S Gatt), I consider that it is open for the jury to conclude that the only reasonable explanation for the accused engaging in these lies and conduct is because he knew that he had caused S Gatt’s death, and that he killed her with murderous intent.
Awareness of a violent death[69]
[69]Items (k), (l) and (m) of the Crown’s notice.
The Crown case relies upon the following items of conduct in this respect:
(a) The accused’s descriptions of seeing bright red blood on the upstairs hallway at the Lambeth St premises leading to the bathroom within which S Gatt’s body was found (item (k) of the Crown’s notice);
(b) The accused’s descriptions of seeing bruising on S Gatt’s body (item (l)); and
(c) The accused’s varying descriptions in his ROIs and recorded conversations of how S Gatt was killed (item (m)).
In his statements to his associates, and in his interviews with police, the accused allegedly made numerous references to indications that S Gatt had been violently killed. For example, in his police field interview, the accused pointed to blood spatter on the hallway wall of the Lambeth St premises, and linked it to the possibility that S Gatt had been down low on her hands and knees, with blood spraying out of her after being kicked or similar (see items (k) and (m) of the Crown’s notice). The accused also referred to bruising that he saw on the body (item (l)).
As already recounted above, in his conversation with Ahmed on 25 November 2017 the accused said that his wife had been murdered or killed and appeared pretty upset about it. When asked how he knew about this matter, Ahmed said the accused relevantly replied:
He said someone … banged her head or used some sort of a weapon and … bashed her head with it.
…
I asked him … how did she die.
…
[H]e said … something has been up on the top of her head.[70]
[70]Transcript (n 1) 826 [19]–[31].
Ahmed described the accused as being very nervous, upset and crying when recounting this detail – ‘[I]t was a very, very intense … moment for him’.[71]
[71]Ibid 827 [6]–[7].
In his conversations with Trent in September 2017, the accused is alleged to have said that S Gatt was in a psychiatric hospital, and also made reference to her head ‘going through a window and rolling out the window’ onto the ground outside.[72] The accused also told Trent that S Gatt ‘ran off with a lesbian’ and was described as being ‘pretty pissed off’ that she had done so.[73] Trent further recalled the accused saying that ‘he wished the c-u-n-t was dead’, which Trent understood to be a reference to S Gatt.[74]
[72]Ibid 187 [15]–[17].
[73]Ibid 189 [4]–[5].
[74]Transcript (n 1) 189 [8]–[11].
The Crown asserts that the accused’s descriptions of injuries caused to S Gatt are implied admissions that he was present at the time they were inflicted upon her; and, indeed, that he was the one to inflict them. It is open for the jury to consider that the nature of and extent to which the accused described circumstances of violence surrounding S Gatt’s death betrays a guilty knowledge of involvement in her murder. Moreover, the jury would be entitled to view the accused’s reference to bloodstains in the hallway of the Lambeth St premises as an implied admission, showing knowledge of a violent event and a need to explain blood he knew to be present there by reason of his involvement in a violent killing at those premises.
Use of the 802 number,[75] and letters and notes[76]
[75]Item (d) of the Crown’s notice.
[76]Item (e) of the Crown’s notice.
The Crown case relies upon the following aspects of conduct under this category:
(a) The accused’s alleged use, and involvement with the use by others, of the 802 number to perpetuate the ruse that S Gatt was alive and in a psychiatric hospital (item (d) of the Crown’s notice); and
(b) Letters and notes written by the accused to S Gatt between 13 June and 22 September 2017 suggesting that she was still alive (item (e)).
The Crown submits that the allegedly staged activity associated with the August revelation visit (items (f), (h)) and the ruse that S Gatt was in a psychiatric hospital (item (c)) are interlinked with his use of the 802 number to conduct staged text messaging (item (d)). The Defence, by contrast, submits that there is no evidence the accused did not regard texts received from the 802 number as genuine. In respect of item (d) I refer, at least in part, to my conclusions previously expressed in Ruling No 3.[77]
[77]Ruling No 3 (n 3) [18]–[24].
Concerning item (d), in my view it is necessary to evaluate the parties’ submissions on this point with regard to the case chronology as a whole. When first questioned by police in January 2018, the accused alerted them to the fact that he had been receiving messages, even quite recently, from somebody claiming to be ‘Sarah’, and whose number was saved as ‘SJ’ in his phone (namely, the 802 number):
A… I’ve been getting strange text messages off different people, talking about Sarah, and I don’t know who it is.
Q 345 Yeah.
ASo, yeah, and I don't know what to do about it. Like, you – you've got my autograph to – to check up on my phone, so hopefully you might be able to work out who it is, who's texting me and stirring me up over Sarah.
…
Q 568 O.K. And what have you saved that number as in your phone?
A SJ.
Q 569 O.K. And what’s that mean?
A Sarah Jane.
Q 570 Her middle name?
A Yeah.[78]
[78]Exhibit P66 (n 26) 42, 68.
And later:
Q 1132 How many messages have you received from that phone?
A Probably four or five.
…
Q 1134 O.K. Over how long a period?
A Probably two, three months.
…
Q 1136 Yeah. And – and you’ve saved that number in your phone?
A Yeah.
Q 1137 As?
A SJ.[79]
[79]Ibid 124.
The Crown submits that this is further evidence of the accused maintaining the ruse that he commenced in the beginning, and attempting to create a false trail to divert suspicion away from himself in respect of S Gatt’s disappearance and death. The Defence dispute this. In my view, however, the fact that the accused later admitted that he knew it was S Gatt’s body in the bathtub by at least August 2017 – before his first police ROI – means that the Defence’s suggestion that he thought the messages were genuine can be refuted, at least insofar as such claims were made after the date of the August revelation visit. Consider, in this regard, the following extracts from the accused’s second ROI:
Q 1395 Well, you knew from August that she was dead.
A No, I didn’t.
Q 1396 You – you just said before you recognised her in the bath when you went there.
A. That’s it. I covered her ‘cause she was naked. Around her … yeah?[80]
[80]Exhibit P69 (n 26) 140.
And later:
Q 1767 Yeah. Well, why did you think – well, in august, you knew it was Sarah dead in that bathtub?
So identified her in August. So why in November, December, are you sending messages to Pino’s phone [the 802 number], pretending that you’re gunna come see Sarah, or you’re gunna go look for Sarah, all that kind of stuff. Why are you sending those messages?
A Well, I fuckin’ miss her, mate. Fuck.
Q 1771 So the – you knew she was dead in August.
A I’m not putting my hand up for it. I didn’t do it mate, simple.
…
Q 1823 Yep – O.K. So you found Sarah dead in August?
A Yes.
Q 1824 And then you sent messages later on.
A To a number I didn’t even know of.
Q1825 Mm’hm. But you knew she was dead at this stage, but you’re contacting it?
AWell, it’s in the fuckin’ middle of the night, mate. I don’t answer messages on my phone. You leave a voicemail on my phone, I wipe it out, mate.[81]
[81]Ibid 180–1, 188.
Concerning item (e), the Crown also relies on letters and notes written by the accused – seemingly written after her death – suggesting a belief that S Gatt was still alive. It is noted that in his first ROI, the accused raised the fact that he had been writing letters to S Gatt and said:
I was still sending her mail, but there’s no mail in the letterbox, so grabbing the mail out of the letterbox? There’s supposed to be letters there for Sarah and there isn’t.[82]
[82]Exhibit P69 (n 26) 147.
On the basis of the evidence as a whole – and consistently with my earlier ruling on this item of incriminating conduct – I consider that item (d) is reasonably capable of being viewed by the jury as evidence of incriminating conduct. Based on the foregoing ROI extracts, and the broader body of Crown evidence summarised above, it is well open to the jury to reasonably conclude that the accused’s use and involvement with the use by others of the 802 number was engaged in because the accused knew he had murdered S Gatt. Expressed differently – the jury could find that the accused sought to use his communications with the 802 number as part of the ruse that he believed S Gatt was still alive, and in a psychiatric hospital, when in fact he knew this was false; and that he was trying to conceal the truth – even after the August revelation visit – because he was aware that he had murdered her. Adopting similar reasoning to that of Kaye JA in Lyons,[83] it would have been an extraordinary matter for the accused to have embarked on the program of sending text messages to a mystery phone number he had saved as ‘Sarah’ or ‘SJ’ – after he knew and had later admitted to police that she was dead – if he had nothing to do with her death. The jury would, in my view, be entitled to reasonably conclude that a person in the accused’s position would not have engaged in such conduct, and then sought to adhere to it in his police ROIs, in circumstances where he was innocent.[84] Item (d) is therefore not intractably neutral. Similar conclusions can be expressed with respect to item (e).[85]
[83]Lyons (n 61) [42].
[84]Ibid. One is also reminded of the High Court’s comments in Baden-Clay (n 7) 333 [76] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
[85]Regarding letters and notes written by the accused (item (e) of the Crown’s notice): the relevance of these also fell into the broader category of references to a violent death (items (k), (l) and (m)), as there were many such references in the letters and notes themselves.
Conclusion
I consider that when all of the material contained in statements made to others, alleged lies and conduct by the accused is considered together in light of the other evidentiary aspects of the Crown case, it provides a powerful body of POIC which assists the Crown to prove that it was the accused who murdered S Gatt.
The POIC ties in with evidence of the accused’s anger about S Gatt’s relationship with Leona and others in the lead-up to S Gatt’s disappearance. Despite the accused’s claims that he continued to love her, it is open to the jury to conclude that the lengths he went to in order to conceal S Gatt’s absence from public life, his failure to report her missing, and his references to the violent things that may have happened to her are all consistent with an awareness of involvement in her murder, and a concomitant desire to conceal his involvement. Expressed differently, if each item of POIC taken in combination with the other Crown evidence in this case was equally consistent with the reaction of an innocent person in all of the circumstances – so as to be ‘intractably neutral’ – then it ought not to be left to the jury as evidence of incriminating conduct supporting the Crown case; but for the reasons which I have stated above, I do not consider that to be the case here.[86]
[86]Paraphrasing, in this regard, the Court of Appeal in Paulino v The Queen [2018] VSCA 306, [176] (Priest, Beach and Kaye JJA) (citations omitted).
As the Court of Appeal noted in the leading decision of R v Ciantar:[87]
So, if an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt. But where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating such a consciousness of guilt, the post-offence conduct should be left to the jury to determine whether it has that effect. Similarly, where evidence of consciousness of guilt, which although by itself is equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.[88]
[87](2006) 16 VR 26 (‘Ciantar’).
[88]Ciantar (n 87) 48 [72] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA) (citations omitted). Whilst this judgment predates the JDA, it remains a leading authority and is consistently cited in the contemporary jurisprudence of this Court on matters relating to incriminating conduct.
In my view, the alternative explanations for the alleged POIC mentioned by the Defence are not so inherently likely so as to render that alleged POIC ‘intractably neutral’.[89] Expressed in terms of s 20(1)(b) of the JDA, the POIC is reasonably capable, in all of the evidentiary circumstances, of being viewed by the jury as evidence of incriminating conduct.
[89]See, eg, R v Kannan (Ruling No 3) [2019] VSC 797, [94] (Champion J).
That conclusion is fortified, in my view, by consideration of the specific factual circumstances of this case as against previous decisions of this Court where the nature and extent of the alleged POIC was such that it could be used by a jury as going to the criminal intent necessary for murder, as well as involvement in an unlawful killing.
For example, in R v Gojanovic (No 2),[90] the Crown case relied upon a body of circumstantial evidence in proof of a charge of murder, of which (as here) the relevant POIC was but a part. That POIC included, relevantly (and in a fashion not wholly dissimilar to this case), a telephone call made by the accused to a third party after the murder had been committed, in which he pretended to be looking for the deceased (who was dead by this time); and later arriving at the crime scene pretending to police that he knew nothing of the death. In that scenario, the ‘concatenation of circumstances’[91] advanced by the Crown was, in the Court of Appeal’s view, well capable of leading the jury to a conclusion that the applicant was guilty of murder (as opposed to manslaughter); in other words, the POIC was not intractably neutral.
[90]Gojanovic (n 40). See also Chalmers v R (2011) 37 VR 464 (‘Chalmers’), where the relevant POIC relied upon by the Crown to evidence the accused’s consciousness of guilt in respect of murder included, inter alia, the placing of a note on the victim’s pillow to give the appearance that she had disappeared; and lies told about the victim’s whereabouts, including that she was away with a fictitious client for two weeks: at 471 [32] (Maxwell P, Redlich JA and Kyrou AJA).
[91]Gojanovic (n 40) [37] – this language, of course, derives from the earlier, leading decision of Ciantar (n 87). See also, eg, the analysis recently undertaken by Taylor J in R v Basham (Ruling No 4) [2022] VSC 108, [42]; and the approach of Kaye JA in Lyons (n 61) [42]ff. As the High Court has also stressed, ‘[t]here is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter’: Baden-Clay (n 7) 332 [74].
Similarly, in Brooks v R[92] the Court of Appeal referred to the earlier case of Butler v The Queen ('Butler'),[93] and said:
[92](2012) 36 VR 84 (‘Brooks’).
[93](2011) 34 VR 165.
In order to prove murderous intent, the Crown [in Butler] relied upon a body of evidence that was circumstantial in nature …
It was argued, on the appeal, that the trial judge had erred in permitting the jury to have regard to the post-offence conduct, and the supposed lies, in determining whether there had been murderous intent. In other words, the evidence was said to be ‘intractably neutral’, at least as to whether murder or manslaughter had been committed.
Ashley JA (with whom Maxwell P (on this point) and Ross AJA agreed), observed that the question whether post-offence conduct can constitute proof of a murderous intent is overwhelmingly one of context.
…
As Ashley JA noted in Butler, it is important to have regard to the ‘significance of other evidence which establishes a context for considering the inferences which are available from post-offence conduct’.
…
Post-offence conduct is, of course, nothing more than a species of circumstantial evidence.[94]
[94]Brooks (n 92) 94–5 (Weinberg JA, Bongiorno JA and T Forrest AJA agreeing) (citations omitted). See also DPP v Zhuang (Ruling) [2014] VSC 276, [23] (Kaye J).
With respect, I also tend to view the Defence’s approach to characterisation of the relevant POIC in this case as redolent of the ‘persistent fallacy’[95] that such conduct cannot be relied upon to evince consciousness of guilt if there are other potential explanations for it apart from guilt of the offence charged. The authorities – and, indeed, the text of the JDA itself – are clear that such conduct is to viewed in light of all of the circumstances of the case. As the Court of Appeal warned in Chalmers v R:[96]
Such evidence [i.e. POIC] is not to be scrutinised in individual segments to ascertain whether each, viewed separately, permits a finding that the accused has impliedly admitted his guilt of the offence charged. Whether an inference of guilt may be drawn beyond reasonable doubt depends upon a consideration of all of the circumstances, including the post-offence conduct.[97]
[95]Chalmers (n 90) 472 [38].
[96]Ibid.
[97]Ibid 472–3 [38] (citations omitted). See also, eg, Baden-Clay (n 7) 333 [77]; Potter v R (2013) 39 VR 655, 663 [46] (Priest JA, Maxwell P and Coghlan JA agreeing).
Finally, I note that based on the foregoing, the jury will need to be given a number of significant directions in relation to the murder charge – and any alternative offence of manslaughter – including the elements of the relevant offences, and incriminating conduct.[98]
[98]For completeness, I should also note the Court of Appeal’s previous observation that, even if lies and POIC were ‘equivocal’ – in that they might go to manslaughter, rather than murder – there would be no reason why evidence of consciousness of guilt may not be relied upon where more than one offence is open: see Mocenigo v The Queen [2013] VSCA 231, [47] (Priest JA, Buchanan and Neave JJA agreeing). This authority was referred to the parties by the Court, upon which the Crown ultimately made written submissions: refer, eg, Transcript (n 1) 1848; Prosecution Submissions (n 5) 2 [4].
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