Director of Public Prosecutions v Andrew Baker (Ruling No 6)
[2023] VSC 198
•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 6) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 198 |
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CRIMINAL LAW – Ruling – No-case submission – Accused charged with murder – Circumstantial case and inferences – Whether evidence taken at its highest could sustain guilty verdict – Use of post-offence conduct in combination with other evidence to infer murderous intent – Accused has case to answer – Criminal Procedure Act 2009 (Vic) s 226(1)(a) – DPP v Andrew Baker (Ruling No 5) [2023] VSC 197R – Doney v The Queen (1990) 171 CLR 207 – DPP v Roberts (Ruling No 13) [2022] VSC 321 – Attorney-General’s Reference (No. 1 of 1983) [1983] 2 VR 410 – R v Dawson [2022] NSWSC 1131.
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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.
At that time, the parties made submissions before me in relation to various items of post-offence incriminating conduct (‘POIC’) alleged by the Crown to have been engaged in by the accused. The background to those matters is set out in my ruling on POIC.[1]
[1]DPP v Andrew Baker (Ruling No 5) [2023] VSC 197R (‘Ruling No 5’). See also DPP v Andrew Baker (Ruling No 3) [2022] VSC 706.
After making various submissions with respect to POIC, the Defence also submitted that there was no case for the accused to answer 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.
Principles
The making of a ‘no-case’ submission is permitted pursuant to s 226(1)(a) of the Criminal Procedure Act 2009 (Vic), which relevantly provides as follows:
226 Accused entitled to respond after close of prosecution case
(1)After the close of the case for the prosecution, an accused is entitled―
(a)to make a submission that there is no case for the accused to answer;
…
(2)When ruling on a no-case submission by an accused, the trial judge may take into account the evidence already given of an expert witness called on behalf of any accused in the trial.
The test to determine whether the accused has a case to answer is well-established, and has been articulated in the case of Doney v The Queen[2] (‘Doney’) as follows:
[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.[3]
[2](1990) 171 CLR 207.
[3]Ibid 214–5 (Deane, Dawson, Toohey, Gaudron and McHugh JJ), as referred to me by counsel for the Defence in oral submissions.
In Doney, the High Court held that neither the power of a court of criminal appeal to set aside a verdict as unsafe and unsatisfactory, nor the inherent power of a court to stay or delay proceedings in order to prevent an abuse of process, provides any justification for interfering with the traditional division of functions as between judge and jury in a criminal trial.[4]
[4]Ibid 215.
Regarding the unique perspective of the jury as fact finders, the High Court in Doney also observed:
[T]he purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.[5]
[5]Ibid 214.
In considering a no-case submission, the trial judge must take the prosecution case at its highest, by drawing all inferences that are favourable to the prosecution and reasonably open on the evidence.[6] A judge is not called upon to determine whether she or he thinks the accused should be convicted; rather, the test is whether – as a question of law – a jury could lawfully find the accused guilty.[7] In particular, where the Crown’s case depends on circumstantial evidence, the question is not whether the trial judge considers there remains open a reasonable hypothesis consistent with innocence. Rather, the test to be applied is whether the jury could rationally conclude that any inference or hypothesis consistent with innocence is not reasonably open on the evidence.[8]
[6]See, eg, Attorney-General’s Reference (No. 1 of 1983) [1983] 2 VR 410; Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323; R v Galbraith [1981] 2 All ER 1060.
[7]See, eg, May v O’Sullivan (1955) 92 CLR 654; Zanetti v Hill (1962) 108 CLR 433.
[8]See, eg, the recent case of DPP v Orchard (Ruling No 1) [2022] VSC 601, [11] (Lasry J) (citations omitted).
In the recent case of DPP v Roberts (Ruling No 13),[9] Kaye JA summarised the principles discussed above to be applied in considering a no-case submission as follows:
The principles that apply to the application made on behalf of the accused are well established. The test which I must apply is not whether the accused man should be convicted on the charge in question. Rather, the test is whether, on the evidence, the jury could lawfully convict the accused of the offence the subject of the charge. In particular, the test is not whether a verdict of guilty would be unreasonable, and thus liable to be set aside on appeal under section 276(1) of the Criminal Procedure Act 2009. Even if the prosecution case is weak it must be left to the jury, unless on the evidence the accused man could not be lawfully convicted.[10]
[9][2022] VSC 321.
[10]Ibid [22] (citations omitted).
In addressing the issue of competing hypotheses, Kaye JA endorsed the following extract from Attorney-General’s Reference (No. 1 of 1983),[11] in which the Full Court held that:
The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies, J. explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt.[12]
[11][1983] 2 VR 410.
[12]Ibid 415–6 (Young CJ, Anderson and Gobbo JJ) (emphasis in original).
Parties’ submissions
Defence submissions
Mr Saunders opened his submissions by defining – with reference to the following specific factual allegations – the Crown case which it was said the Defence was obliged to meet, and upon which it was said there was no case to answer:[13]
[13]Transcript of Proceedings, Director of Public Prosecutions v Andrew Baker (Supreme Court of Victoria, S ECR 2021 0094, Jane Dixon J, 10 March 2023), 1807–9 (‘Transcript’).
(a) The Crown’s contentions as to the mode of killing, the place of killing, and the relevant time period within which the killing occurred;
(b) The Crown’s contentions that the accused was motivated by jealousy and anger over what he perceived to be unrequited love of or commitment to S Gatt; and
(c) The Crown’s specific contentions that S Gatt was killed by the accused sometime between 19 April (when Leona Rei-Paku (‘Leona’) last saw S Gatt alive) and 23 April 2017 (when the electricity at 2/57 Lambeth Street, Kensington (‘the Lambeth St premises’) turned off) (‘the relevant charge period’).
With reference to those factual allegations, Mr Saunders submitted that the evidence produced by the Crown was incapable of establishing that a killing – let alone an unlawful killing, or indeed the requisite elements of murder – was present on the facts of this case.[14] In aid of this claim, the Defence relied, in summary, on the following:
[14]Ibid 1812, 1813 [1]–[4] and especially 1842 [7]–[10]: ‘Your Honour cannot be satisfied that there is proof beyond reasonable doubt that she [S Gatt] was unlawfully killed. I should rephrase that: Your Honour can’t even find that she was killed, let alone unlawfully killed’.
(a) Causation: the Crown’s inability to establish that S Gatt’s death resulted from an unlawful killing;[15]
[15]Ibid 1812ff.
(b) Identity: the Crown’s inability to exclude Leona as an alternative suspect;[16]
(c) Opportunity: the Crown’s related inability to present any evidence placing the accused at the Lambeth St premises during the relevant charge period;[17] and
(d) Relationship evidence: the Crown’s inability to meaningfully utilise evidence of domestic violence in S Gatt’s relationships with the accused in support of the specific case theory propounded.[18]
[16]Ibid 1823ff.
[17]Ibid 1830ff.
[18]Transcript (n 13) 1839ff.
I will summarise the Defence submissions with respect to each of these items in turn below.
Causation – no evidence of mechanism or cause of death
Mr Saunders submitted that the Crown could not establish, on the evidence, that S Gatt died as a result of an unlawful killing, as opposed to some kind of accidental death or drug overdose. The evidence of Crown pathologist Dr Joanna Glengarry (‘Dr Glengarry’) was referred to in this regard. Dr Glengarry testified that, on the basis of toxicology samples taken from S Gatt’s body and its general state of decomposition, she could not exclude various incidental or natural causes of death, such as the possibility of a drug overdose. In essence, Mr Saunders submitted that S Gatt could have died from a drug overdose or not; similarly, she could have died from an injury or not. Either one was a reasonable hypothesis.
Relying on the decision of Smith J in R v Colomer,[19] the Defence submitted that – in order for the jury to conclude that S Gatt died as a result of an unlawful killing – the jury would need to reject Dr Glengarry’s evidence that an accidental death could not be excluded by her, and they would have no reasonable basis for doing so in the circumstances of this case. In this regard, S Gatt’s heavy drug use – a fact upon which, it was said, the Crown opened its case to the jury and which was apparent on the evidence – was stressed.
[19](Supreme Court of Victoria, Smith J, 17 August 1990), especially at 405, 408–9, 410–12, 414–15.
Mr Saunders also referred to the blood spatter evidence of police forensic officer Mark Gellatly (‘Mr Gellatly’), and in particular the expiration/impact pattern at ‘marker H1’.[20] Despite the DNA results,[21] Mr Gellatly could not say what mechanism of injury led to that expiration/impact pattern; nor exclude the possibility that the expiration/impact pattern was the result of a blood nose (although Mr Gellatly testified there was no droplet pattern). Further, regarding Mr Gellatly’s examination of apparent blood spatter on the walls of the Lambeth St premises, Mr Gellatly noted that there was heavy insect staining present. Whilst the evidence might therefore have indicated that S Gatt had sustained an injury of some description, it did not show what caused the injury, or who inflicted it. The blood had also aged to such an extent that Mr Gellatly could not date the bloodstains, meaning there was no evidence that the blood was deposited within the relevant charge period.
[20]Various markers were affixed at the Lambeth Street premises for the purposes of blood spatter analysis, as discussed by Mr Gellatly when giving his evidence. Marker H1 referred to an area corresponding close to the floor along the north wall of the hallway adjacent to the bathroom where S Gatt’s body was found at the Lambeth Street premises.
[21]Mr Gellatly gave evidence that there was a single source DNA profile with respect to marker H1, corresponding to the typical likelihood ratio of 100 billion: ‘[S]o the DNA evidence is one hundred billion times more likely if [S] Gatt is the source of the blood. And Baker, Gabriele and Rei-Paku were excluded as a source’: Transcript (n 13) 1202–3.
Mr Saunders referred in passing to the evidence of forensic pathologist and entomologist Dr Melanie Archer (‘Dr Archer’), who similarly could not provide a specific date of death. It was Dr Archer’s evidence that the first colonisation of insects within S Gatt’s body she could identify occurred somewhere between May and September 2017; and that death had evidently occurred sometime before that point, though she could not be sure of exactly when.
In light of all of this, the Defence submitted that the jury could not rationally exclude accidental death from some other cause while S Gatt was highly intoxicated (such as a trip, or a fall on the stairs) which may have led to some other person placing her in the bathtub. Indeed, in the Defence’s submission some other person, such as Leona, may have been there when such an injury or accident occurred, noting the relative scarcity of the accused’s DNA relative to Leona’s found at the crime scene.[22]
[22]The Defence pointed to Leona as an alternative suspect, and submitted that the only DNA belonging to the accused found at the crime scene was on tape affixed to the windows. Leona’s DNA, by contrast, was found in a number of locations, including on the handles of a Sportsgirl bag that had been placed in the wheelie bin found in the bathroom upstairs (and upon which bloodstains possibly belonging to S Gatt were also found). Leona’s fingerprint was also located on a glove packet found on the stairs. Refer Transcript (n 13) 1822.
Identity – the ‘window of opportunity’ and Leona’s evidence
In summary, the Defence submitted that the Crown case was predicated upon a very specific ‘window of opportunity’ (i.e. the relevant charge period) within which S Gatt was said to have been killed – which was heavily reliant on the ‘wholly unreliable’[23] evidence of Leona – and that, the Crown having put its case in that way, there was no case for the accused to answer. Reference was made to a number of versions of events given by Leona, including:
(a) That she was at the Lambeth St premises on the night the power went off (which, based on the evidence of electrical engineer Tobie De Villiers (‘Mr De Villiers’), would likely be 23 April 2017). She described setting up four candles in some detail in her record of interview (‘ROI’) with police.[24] She suggested that S Gatt stayed at her house after the power went out ‘for a couple of days, so possibly the 22nd’.[25] Later, Leona’s son Shannon Rei-Paku (‘Shannon’) and her ex-partner Gary Lacey (‘Gary’) took S Gatt to 26 Mountfield Street, Brunswick (‘the Mountfield St premises’) (being the accused’s alternative address), and S Gatt never returned. The accused’s friend Justin Gabriele[26] and Shannon did not give evidence in relation to this (Gary was not called); and
(b) That she saw social worker Wendy Hedges at Flat Out on 5 May 2017, at which time Leona said she had had a fight with her ex-girlfriend[27] the week prior and that they had broken up. If this evidence is accepted, the Defence submitted it would mean that the last time Leona saw S Gatt was somewhere around 28 April 2017 – which would have a concomitant impact on the relevant charge period dates within which the Crown said S Gatt had died.
[23]Ibid 1823 [16]–[17], [21].
[24]The description of setting up candles was briefly mentioned during Leona’s narration of the events of the evening of 18–19 April 2017 in the course of her evidence-in-chief (refer Transcript (n 13) 587); although with reference to a police ROI conducted on 27 June 2018, it was later put to Leona in cross-examination by Mr Saunders that this related rather to 23 April 2017 (and to which see Transcript (n 13) 666). Leona accepted that the passages from that ROI relied upon by Mr Saunders represented what she told police at the time (Transcript (n 13) 666), although she also described herself as ‘[d]rug-fucked and out of it … on tablets where you can’t remember’ at the time she was interviewed by police in 2018 (Transcript (n 13) 663).
[25]Ibid 1824.
[26]The accused periodically lived with Justin at the Mountfield Street premises.
[27]Notes from this meeting relevantly record that ‘Leona was upset and crying that she had got back to her girlfriend Sharon’, although it was understood this was, rather, a reference to S Gatt: refer Transcript (n 13) 692–3, 1826.
The Defence also submitted that there was no direct evidence the accused switched off the power at the Lambeth St premises; nor that it had been switched off at his direction.[28] Mr Saunders took the Court to Mr De Villiers’ evidence that, after 19 April 2017 when S Gatt and Leona left the Lambeth St premises, only the cyclical power load at the premises was used up until 10 am on 22 April 2017 – indicating that no one was living at the property over this period. Mr Saunders submitted that the likely inference from this is that S Gatt was with Leona during that time. Between 10 am on 22 April and 12.30 am on 23 April 2017, however, there was evidence of power consumption (and therefore human activity) at the property. At around 12.30am on 23 April the power was then cut completely, and did not resume again until August 2017.[29]
[28]The Crown also referred in its opening to the power at the Lambeth Street premises being turned off at the accused’s direction. It was submitted that there is no evidence of any person being directed to turn the power off, meaning the allegation should be limited to the accused turning the power off only.
[29]Mr De Villiers said this could have been caused by either the main switch being turned off, or the safety switch being triggered by an improperly maintained device: Transcript (n 13) 1318.
The fact that Leona gave evidence suggesting she was at the Lambeth St premises with S Gatt when the power went out – and related this to the events of the night of 18–19 April 2017 (‘the taxi night’) – was not consistent with the above-mentioned power usage records, and Mr De Villiers’ evidence. Therefore, it was said, the Crown could not exclude the possibility that Leona was with S Gatt when the power went out on 23 April 2017; that S Gatt was alive when the power went off, and died some time thereafter; or that S Gatt was already dead when the power went out, and that it was Leona who was at the Lambeth St premises (either at the time of death, or afterwards) and who placed S Gatt’s body in the bathtub.
Opportunity – the Crown’s inability to place the accused at Lambeth Street during the ‘window of opportunity’
Mr Saunders submitted that the Crown could not place the accused at the Lambeth St premises during the relevant charge period within which the offence was alleged to have occurred. Call Charge Records (‘CCRs’) and Event Based Monitor (‘EBM’) records[30] adduced by the Crown at trial did not place the accused (or, at any rate, his phone) in the vicinity of the Lambeth St premises during that time. The phone records over the period 19–23 April 2017 did show the accused as being in the general Brunswick area. Also, the accused’s phone records showed his phone being in Kensington in August 2017 around the time of the ‘August revelation’[31] visit to the Lambeth St premises. Similarly, when Leona’s whereabouts were known to have been at the Lambeth St premises, her CCRs showed her phone using a telecommunications tower proximate to that address.[32]
[30]Regarding the EBM records, it should be noted that these were not able to be obtained for the whole of the relevant charge period, and contained gaps of time when no data was available; although, where they were absent, the CCRs showed phone tower locations for internet usage and voice calls from the accused’s phone: refer Transcript (n 13) 1831.
[31]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 Justin Gabriele and Natalie Dibnah at the Lambeth Street premises on or about 10 August 2017; refer, eg, Transcript (n 13) 1763 [26]–[27].
[32]Transcript (n 13) 1486ff.
There are also no confirmed eyewitness sightings of the accused in the Kensington area during the relevant charge period; and his Myki and bank records do not place him in the vicinity of the Lambeth St premises around that time. However, it was submitted that there was ample evidence (again, primarily in the form of phone records) that Leona was in the vicinity of Kensington during the period when the Crown allege S Gatt was killed and the power switched off.
Relationship evidence – neutral in relation to the accused
The Defence submitted that, whilst there were some reported incidents of domestic violence as between the accused and S Gatt in 2014 and 2015, Leona also had a violent relationship with S Gatt; and, indeed, that latter relationship between the two women showed many more ‘difficulties’ in early 2017 compared to S Gatt’s relationship with the accused.
In those circumstances, Mr Saunders submitted that the relationship evidence adduced at trial against the accused went nowhere in terms of proving the Crown case, because there was an equal competing hypothesis consistent with Leona having a poor relationship with and reason to have killed S Gatt.
Incriminating conduct
The Defence referred again to their arguments about POIC. Those arguments have been set out and addressed in detail in my ruling on that issue, and are not repeated here.[33]
[33]Ruling No 5 (n 1).
Crown submissions
The Crown supplied brief written submissions,[34] which were elaborated upon by Mr Dickie orally.
[34]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 (‘Prosecution Submissions’).
The Crown noted that the central issue in this trial is whether or not the accused murdered S Gatt. To prove this matter beyond reasonable doubt, the Crown would need to exclude any reasonable hypothesis consistent with innocence – such as S Gatt being murdered by Leona, or someone else.
In rebutting any such hypothesis, the Crown variously relies upon:
(a) Leona’s evidence;
(b) The ‘intensity’ of the relationship between the accused and S Gatt, and the control which he had with respect to her;
(c) The timing and circumstances of S Gatt’s death;
(d) The accused’s POIC;
(e) The accused’s lies; and
(f) Alleged admissions by the accused as to having been present at the time S Gatt was killed.
The Crown accepted that Leona’s evidence was very unreliable in several respects, but submitted that – based on Leona’s steadfast denials of causing or being involved in S Gatt’s death – the jury could exclude the hypothesis that she killed S Gatt, including by having regard to the different relationships S Gatt had with Leona, as opposed to the accused. The jury could also have regard to the POIC evidence against the accused.
In response to issues raised by the Defence with respect to causation, the Crown submitted that it was open on the evidence for the jury to find that S Gatt was unlawfully killed by someone who wanted to cause her really serious injury or death. The Crown reiterated arguments made with respect to POIC,[35] and argued that the treatment and positioning of S Gatt’s body in the bathtub is evidence from which the jury could reasonably infer that S Gatt was violently killed. Mr Dickie’s submission, in essence, was that the treatment of the body is not consistent with death through accident or natural causes and is, rather, consistent with the killer having dealt with the body in a violent manner.
[35]See, eg, Transcript (n 13) 1857.
More generally, the Crown submitted that the matters raised on behalf of the accused (as detailed earlier above) were not such that, when regard was had to all of the evidence, the jury could not rationally and properly find beyond reasonable doubt that the accused murdered S Gatt.[36]
[36]Citing, in this regard, The Queen v Baden-Clay (2016) 258 CLR 308, 333 [76]–[79] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
Mr Dickie took issue with the Defence submission that the Crown’s particulars relating to the alleged date(s) of S Gatt’s death were somehow vital to the success or failure of the Crown case, noting that the date is not generally a material factor on an indictment; and that the indictment in this case indeed particularises the alleged timeframe of 19–23 April 2017 using the words ‘on or about’.[37] Mr Dickie submitted that the indictment covers an approximate period, and that – if the jury were to ultimately find that S Gatt was killed a few days after that time – there would no basis for the jury to acquit simply because the Crown’s indictment provided a date range of 19–23 April only. This argument was advanced because – on the Crown’s own admission – Leona’s testimony, and the evidence of electricity usage at the Lambeth St premises, may not have assisted the Crown’s case as initially anticipated.
[37]Strictly speaking, a no-case submission is not the time to raise alleged defects in the drafting of an indictment. Such issues must be raised as soon as possible as part of counsel’s obligation to identify material issues and assist the Court: see, eg, Downer EDI Works Pty Ltd v The Queen (2017) 53 VR 1, 11–13 [34]–[41]; Criminal Procedure Act 2009 (Vic) ss 199, 200.
Consideration as to whether the accused has a case to answer
Causation, and the evidence of Dr Glengarry
First, I do not accept the Defence’s submission that – for the jury to conclude S Gatt died as a result of an unlawful killing – they would need to reject Dr Glengarry’s evidence. To look at Dr Glengarry’s evidence in this way is to regard it in a vacuum. On the tests set out earlier regarding inferences available to the jury, I am required to look at all of the evidence put before the jury taken as a whole.
Dr Glengarry’s evidence was that she could not exclude the possibility that S Gatt died as a result of a drug overdose. Likewise, she could not exclude the possibility that S Gatt had died as a result of injuries inflicted upon her. She was, in other words, simply unable to say how S Gatt died. So much was borne out in the Defence’s own cross-examination of Dr Glengarry:
So it may have been a drug overdose. It may not have been. It may have been an injury. It may not have been?
---Correct.
Either one is a reasonable hypothesis?---Correct.[38]
[38]Transcript (n 13) 1072.
The jury would not need to reject Dr Glengarry’s evidence to conclude that S Gatt died as a result of an unlawful killing. The jury would be entitled to conclude that S Gatt was the victim of a homicide based on the circumstantial evidence taken as a whole. Such evidence is not refuted or negated by Dr Glengarry’s evidence. Expressed differently, and perhaps more simply: the fact that Dr Glengarry was not able to determine how S Gatt died does not necessarily lead to the conclusion that it is not open to the jury to find that the accused killed her, if other evidence convinces them that he did.
It is worth recalling, in this regard, that the absence of any direct evidence as to the mechanism of death (or facts pertaining to the circumstances of death) does not preclude the jury from convicting the accused on the basis of other circumstantial evidence. I note, in particular, the recent New South Wales judge-alone decision of R v Dawson,[39] in which Harrison J relevantly concluded as follows:
The evidence does not reveal how Mr Dawson killed Lynette Dawson. It does not reveal whether he did so with the assistance of anyone else or by himself. It does not reveal where or when he did so. Nor does it reveal where Lynette Dawson’s body is now. The charge of murder in this trial is unsupported by direct evidence. The case against Mr Dawson is wholly circumstantial. It is therefore necessary that the Crown persuade me beyond reasonable doubt not only that Mr Dawson's guilt is a rational inference, but that it is the only rational inference that the circumstances would enable me to draw. The circumstantial evidence in this case, considered as a whole, is persuasive and compelling. None of the circumstances considered alone can establish Mr Dawson’s guilt but when regard is had to their combined force I am left in no doubt.[40]
[39][2022] NSWSC 1131, to which I also directed Mr Saunders during the course of his no-case submission.
[40]Ibid [756].
Applying those principles, and mindful of the evidence going to this issue as described above, I consider that the limitations on the inferences that can be drawn from Dr Glengarry’s evidence and that of Mr Gellatly (discussed below) are not such as to compel acceptance of the proposition that there is no case to answer. The evidence of Dr Glengarry and Mr Gellatly is just one component of the Crown case. Whilst the Defence may posit a theory to the jury that S Gatt died from a drug overdose or falling down the stairs – and Dr Glengarry as a forensic pathologist cannot refute that theory – it is open to the jury on the basis of the whole of the evidence, including the positioning of the corpse and proximate blood spatter, to reject the Defence theory of accidental death as fanciful.
A similar conclusion can be reached in respect of the Defence’s arguments concerning the scarcity of DNA evidence consistent with the accused’s DNA on items found in the upstairs bathroom. The difficulty for the jury drawing conclusions from the DNA results from samples taken from within the Lambeth St premises, as with fingerprint evidence, is that both the accused and Leona had occupied those premises for periods before the putative period of S Gatt’s death; and both had also been present in the upstairs bathroom of those premises after her death. The question as to the weight to be given to the relative scarcity of DNA results appearing to link to the accused is a matter for the jury to weigh, along with all the other evidence in the trial.
Evidence of a violent death
It is also open for the jury to infer that the person who killed S Gatt positioned her body in the manner apparent in the crime scene and autopsy photographs tendered at trial. No alternative hypothesis or explanation for that positioning was apparent on the evidence, and it would not appear consistent with a mere ‘accidental’ death. Mr Saunders briefly submitted in reply that Leona (or someone else) might well have had a reason to do something inappropriate to the body after death.[41] But a reasonable inference can be drawn that whoever was responsible for the treatment of S Gatt’s body after her death (humiliated and undressed)[42] was also the person who was responsible for her death. When taken in combination with other evidence – including the accused’s motive to kill S Gatt (discussed in detail further below) – such evidence could be used by the jury in support of the proposition that S Gatt was murdered.
[41]Transcript (n 13) 1860 [3]–[10].
[42]The Crown submitted at various points that the positioning of S Gatt’s body bespoke a certain degree of humiliation: see, eg, Transcript (n 13) 1762; Prosecution Submissions (n 34) 2 [7].
Whilst acknowledging (as I already have done above) that the blood spatter evidence of Mr Gellatly is not capable of establishing when the blood at the Lambeth St premises was deposited, when taken in combination with other evidence – such as the broken bathroom window and broken shower curtain hangers, along with the way in which the accused raised and referred to the blood spatter in his police interviews – such evidence is capable of supporting the inference that S Gatt was violently killed.
The accused made various statements about S Gatt’s death, including many such references in his police interviews; letters and notes written by him; and things he said to witnesses about S Gatt being violently ‘killed’. He gave descriptions of the positioning of the body in the bathtub; descriptions of the crime scene; and descriptions of mechanisms of death. As I have already outlined in my ruling on incriminating conduct,[43] the accused’s descriptions of a violent death may be used by the jury as evidence of guilt, when taken in combination with other evidence relied on by the Crown.
[43]Ruling No 5 (n 1).
An example of this kind of evidence came from Crown witness Ahmed Abdellatif (‘Ahmed’), who gave evidence of a chance encounter and conversation with the accused in around November 2017 as follows:
[H]e told me that, ah, his wife has been, ah, murdered or killed … he was pretty upset about it and, ah, I didn't ask him much of details, ah, except if he knows how he – how he knew about. He said, ah, someone – someone, um, banged her head or used some sort of a weapon and, ah, bashed her head with it … I asked him how did – ah, how did she die … And his response - he said, ah, something has been up on the top of her head.[44]
[44]Transcript (n 13) 826 [19]–[31].
Ahmed’s evidence that the accused said S Gatt was ‘murdered or killed’, and his reference to a weapon being bashed on her head, in combination with other evidence of the accused’s descriptions of a violent death and other aspects of his POIC, appears significant. The jury would be entitled to consider that Ahmed’s evidence and similar evidence of admissions or implied admissions connects with other relevant aspects of circumstantial evidence implicating the accused, such as evidence of a fraught relationship between the accused and S Gatt, and evidence of motive and opportunity.
Regarding the hypothesis that Leona killed S Gatt, or was present when she died, Leona gave evidence about her relationship with S Gatt, including the last time she saw S Gatt alive, and her interactions with the accused in the lead-up to and following S Gatt’s disappearance. There were significant inconsistencies in her account of when and where she last saw S Gatt alive. She described going to the Lambeth St premises after not seeing S Gatt for a lengthy period and being shown the body in the bathtub by the accused.
The Defence sought to strongly impeach Leona’s evidence, and submitted that she could not be regarded as a reliable witness. Although a reliability warning will need to be given in respect of Leona’s evidence, and her evidence was flawed in many respects, in the end the decision as to what the jury make of her evidence lies within their province, and must be left to them. It is entirely open to the jury to decide that, for all her deficiencies as a witness, the basic thrust of Leona’s evidence was truthful in at least the following main aspects:
(a) She had an intense, intimate relationship with S Gatt in late 2016 which had ended before Christmas of that year, after which time S Gatt was back living with the accused. Leona was made aware that S Gatt felt obligated to go back to the accused because he said he had cancer and believed that, when he died, S Gatt would receive a large sum of money which would help her get her children back;
(b) Leona went to see S Gatt at the Lambeth St premises around the time her brother-in-law died in March 2017.[45] S Gatt was still romantically involved with the accused at that time, and the accused was present with S Gatt at the Lambeth St premises.[46] Leona threw the wedding rings that she had previously exchanged with S Gatt at the couple; told the accused to marry S Gatt; and said words to the effect of:
[45]Transcript (n 13) 499–501.
[46]Ibid 501.
Hey, if I come back in six months and this house is still the same and she’s [S Gatt] back on that stuff then I’ll come and take her off you…[47]
[47]Ibid [26]–[30].
(c) Leona also saw S Gatt another time at the bus shelter in Moonee Ponds, but S Gatt said she had to be with the accused because of his cancer and the payout which would help her get her children back;
(d) Leona saw S Gatt on 18–19 April (i.e. the taxi night). She came across S Gatt outside Woolworths, and S Gatt said the accused was in hospital. Leona and another man, Zach Taha (‘Zach’), went back with S Gatt and used drugs at the Lambeth St premises. That night, S Gatt decided to collect some of her clothes from the Lambeth St premises and return with Leona to Maribyrnong (where Leona lived) because the house in Lambeth Street was ‘depressing’, with holes in the wall. Leona and S Gatt took some things back to Leona’s house accordingly. They then returned to Lambeth Street, where Leona tried to secure the front door with metal from a bed base; and reports were made to police about Zach sexually assaulting S Gatt, before both women again returned to Leona’s house;
(e) The next day, after S Gatt slept the night at Leona’s house in Maribyrnong, S Gatt left Leona’s house and Leona recalled being told by her ex-partner Gary and her son Shannon that they had dropped S Gatt off and S Gatt did not want to return to Leona;
(f) After that, Leona regularly attended the Lambeth St premises on her Centrelink pay day looking for S Gatt but did not get to see her. Leona was aware that there was an intervention order against her attending the Lambeth St premises, and she was worried about being found in breach of it;
(g) During the period when Leona could not find S Gatt, she was told by the accused that S Gatt was in a psychiatric hospital, but that she would be getting out on Mother’s Day and that Leona could see her then, and that they could all have a barbeque together;
(h) Leona subsequently saw the accused and Mr Gabriele by chance at Ozanam House, and inquired where S Gatt was. In response, she was told by the accused to come back to the Lambeth St premises. When she got there, she was taken upstairs by the accused, and shown the bathtub. She saw what appeared to be a human foot in the bathtub under a blanket. The accused said they thought it might be her (Leona) in the bathtub. She was frightened of what the accused might do to her and fled the house. He followed her, and went back with her to her flat in Maribyrnong and used drugs there. Leona visited the Mountfield St premises a few days later on the pretext of getting money she was owed by the accused for the drugs he had used at her flat, and she asked about what she had seen at the Lambeth St premises. The occupants who included Mr Gabriele and the accused were hostile towards her, so she left and decided not to go back there; and
(i) Leona did not have anything to do with S Gatt’s death.
The jury would also be entitled to find some support for Leona’s evidence in that of her son, Shannon. He gave evidence that – after Leona broke up with S Gatt – there was a period when Leona was saying she had not been able to contact S Gatt, and had been to S Gatt’s house but no one was there. Shannon said Leona was upset and distraught that she could not find S Gatt. Further evidence from Lambeth Street neighbour Flavio Rinvenuto (‘Flavio’) was consistent with Leona being seen at the Lambeth St premises looking for S Gatt and expressing concern for her.
Therefore, whilst it is open to the Defence to put forward Leona as an alternate suspect – despite various flaws and inconsistencies in her evidence, and deficits in her memory due to drug and alcohol use – it is also open to the jury to reject the hypothesis that Leona killed S Gatt based on their assessment of her description of her relationship with S Gatt; the circumstances of the taxi night; and Leona’s account of her movements in the period before and after the putative window of S Gatt’s demise.
With respect to any other alternative suspects for S Gatt’s murder (apart from Leona), it is open to the jury to consider that there was an absence of evidence that some other person had a sufficiently strong motive or opportunity to kill S Gatt in the weeks or months leading up to her death.[48] The manner in which the body was positioned and left, which I have already described, also contributes to the consideration of the likelihood of another person being the killer.
[48]See, eg, the comments of Hamill J in R v Qaumi (No 12) [2017] NSWSC 134, [60]: ‘It is obvious that, as a matter of fact and logic, the existence of motive in people other than the accused will make the prosecution’s job of proving the offence beyond a reasonable doubt more difficult’.
Opportunity, and the location of the accused
I also do not consider that the absence of evidence placing the accused (or, at any rate, his phone) near the Lambeth St premises during the ‘window of opportunity’ – and the concurrent existence of evidence placing his phone in the Brunswick area between 19–23 April 2017 – is of such character as to fundamentally undermine the evidence relied upon by the Crown to the extent that a jury could not reason to a guilty verdict.
Whilst the absence of objective proof that the accused was in Kensington during the relevant charge period sits uncomfortably with the Crown case that he killed S Gatt at the Lambeth St premises on or about the date period specified in the indictment, there is a body of interconnected circumstantial evidence which, taken as a whole, is capable of supporting a guilty verdict.
I consider that it would be lawfully open to the jury to convict the accused, despite this lack of objective evidence placing him in the vicinity of the Lambeth St premises during the relevant charge period. The phone record evidence (CCRs and EBMs) has some limitations. The records are not conclusive evidence as to the accused’s whereabouts over the relevant charge period or on or about that period of time. To be conclusive proof of his whereabouts, the phone would need to have been always with the accused, always switched on and emitting a signal, and continuously covered by phone tower evidence for the whole of the period. The phone tower evidence does not, however, cover the whole period in question.
Whilst accepting that no witness describes seeing the accused at the Lambeth St premises on or about the relevant charge period, given the late discovery of the body and the familiarity of neighbours with the accused as a sometime resident at Lambeth Street, his presence in the vicinity in April 2017 would not have been a cause for concern.
Although no other evidence – such as Myki records or bank withdrawals – places the accused in the vicinity of the Lambeth St premises in the relevant period, it is also notable that the accused made a number of remarks in letters written before and after S Gatt’s putative date of death, and in his interviews with police, that indicate an attitude of past entitlement to be at Lambeth Street because S Gatt was his wife or partner for life. He kept various possessions at the Lambeth St premises, and the power account was held in his name. This evidence ties in with the envelope postmarked 26 April 2017 found at the Lambeth St premises – containing a note referring to cutting off power and gas at the property – which is discussed further below.
On one view, the absence of objective evidence placing the accused in the vicinity of the Lambeth St premises constitutes the strongest argument put forward by the Defence in support of the no-case submission. But it is ultimately a question for the jury whether the absence of objective supporting evidence placing the accused or his phone in the vicinity of the Lambeth St premises during the relevant charge period excludes beyond reasonable doubt that the accused killed S Gatt as alleged.
Where the Crown case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt – and is thus capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable – there is a case to answer.[49]
[49]DPP v Iliopoulos (Ruling No 3) [2016] VSC 132, [10] (Kaye JA) (‘Iliopoulos’), citing DPP (No 2) of 1993 (1993) 70 A Crim R 323, 327 (King CJ).
The weight of the evidence relied on by the Crown and the strength of the Crown hypothesis of guilt is a question for the jury, unless it is not capable of supporting proof of guilt of the charge beyond reasonable doubt.
Opportunity more generally
More generally, I consider that it is also open to the jury to find that the accused had the opportunity to kill S Gatt. The accused knew how to access the Lambeth St premises without using the house keys (as described in his field interview with police); and as a well-known resident or visitor to that address, he would not arouse suspicion coming and going from S Gatt’s house. He is also a larger man compared to S Gatt, who appears in in-car footage from the taxi night adduced at trial to be a relatively small and thin person.
Whilst the Defence have proposed Leona as an alternative suspect, the jury would have observed that she was also a small woman, who was a self-confessed alcoholic and drug user. It would be open to a jury to accept that the thrust of Leona’s evidence was that – by April 2017 – Leona did not regard herself as entitled to come and go from the Lambeth St premises without invitation.
As I understood it, the Defence invoked evidence of power outages at the Lambeth St premises during its no-case submission in aid of i) casting doubt on the ‘window of opportunity’ within which S Gatt could conceivably have been killed and linked it to phone evidence suggesting that only Leona (rather than the accused) was geographically proximate to the area and could have killed S Gatt during this time. Ultimately, it would be open for the jury to reject the hypothesis that Leona killed S Gatt, regardless of the fact that Leona mentioned being present with S Gatt on an occasion when the power went off, and regardless of phone evidence suggesting Leona was in the vicinity of the Lambeth St premises after the taxi night. After all, the jury heard Leona cross-examined at length and heard the affectionate way in which she spoke of S Gatt, and her firm denials of having killed her. The jury also, of course, heard evidence of an envelope postmarked 26 April 2017 tendered by the Crown, containing a note in which the accused expressed anger towards S Gatt and stated he was ‘cutting all power to your house and gas’.[50] Again, whether the power disconnection evidence, in combination with the phone evidence excludes beyond reasonable doubt the hypothesis that the accused killed S Gatt as alleged will be a question for the jury. I do not consider that the tenor of that evidence precludes the jury lawfully returning a guilty verdict.
[50]Exhibit P55 (‘Postmarked envelope 26 April 2017 with letters/notes found inside’).
Relationship evidence, and motive
It is open to the jury to find that the accused had a strong motive to murder S Gatt. Directly before she disappeared from public view, S Gatt had been in the company of another man (Zach) and Leona, as seen in-car footage from the taxi night adduced at trial, and as confirmed by members of police who interacted with S Gatt and Leona later that night. S Gatt gathered her belongings from the Lambeth St premises and took them back to Leona’s house. Brief phone contact took place between the accused’s phone and Zach’s phone on the taxi night (the night of 18 April and the morning of 19 April 2017), although the precise content of those communications was unclear, and Zach was ultimately not called as a witness at trial.[51] On Leona’s evidence, Zach committed some sexual impropriety towards S Gatt that night, which was reported to the police in the course of the taxi night. A statement about the alleged sexual assault is before the jury, although other evidence suggests the sexual assault allegation may have been fabricated.
[51]Refer, eg, Transcript (n 13) 68, 69.
Nevertheless, the evidence in the trial is replete with references to how strongly the accused resented S Gatt being sexually involved with Leona and other men. He frequently referred to Leona in very unfavourable terms, and wrote letters and notes underlining his own inability to sexually satisfy S Gatt. Mr Gabriele gave evidence that the accused was adamant S Gatt was his girlfriend and he was the only one to be with her. Regarding S Gatt being with Leona, Mr Gabriele said that the accused ‘wasn’t very happy about them two being a couple’,[52] and was quite emotional about it.
[52]Transcript (n 13) 732.
Significantly – and contrary to the portrayal which the Defence sought to advance in submissions on the no-case application with respect to the relative levels of violence characterising S Gatt’s relationships with the accused (less) as compared to Leona (more) – Ahmed gave evidence that the accused admitted being involved in very violent fights and physical interactions with S Gatt every few days in the early months of 2017, leading to the accused returning to stay at the Mountfield St premises from time to time over that period. There is, furthermore, evidence which would allow the jury to infer that the accused’s on-and-off relationship with S Gatt continued in this general way right up until the relevant charge period in April 2017. In this regard, I note by way of non-exhaustive examples:
(a) Two text messages sent from the accused’s phone number to S Gatt’s phone number on 20 April 2017. These were the last text messages sent from the accused’s telephone number to S Gatt’s phone number until 27 June 2017, despite her 40th birthday falling on 25 May 2017. The accused did, however, continue to regularly send text messages to Leona’s phone number after 20 April 2017;[53]
[53]Ibid 69, 71, 73.
(b) The envelope postmarked 26 April 2017, which also contained a separate note relevantly reading:
[T]o my girl & wife if still want 2. Im sorry what I said to you … so this week im going to try get a ticket to Tazzie … Happy anverserey for the 4th April … im loser you told me to leave … im not sharing you with her … u have decide me or her …
(c) The accused’s account in his ROI that he fought with S Gatt about ‘relationship problems’ before she went missing;[54]
[54]Exhibit P66 (‘First record of interview with Andrew Baker commencing 4 January 2018 at 9.28am’) 165 Q 1493 (‘Exhibit P66’).
(d) The evidence of Ahmed, that I have just mentioned, who was living with Mr Gabriele from around February to April 2017 and met the accused during that time, and who recounted the accused’s statements of violent arguments between the accused and S Gatt;[55]
(e) The evidence of Crown witness Martin Hanns, who saw the accused and S Gatt together outside in Lambeth Street during the first two weeks of April 2017;[56] and
(f) Royal Melbourne Hospital records pertaining to treatment of the accused between 14–17 April 2017, in which it was noted that he ‘claimed to be living with his first girlfriend of 10 years, who is of Maltese descent, in Kensington’.[57]
[55]Transcript (n 13) 824–5.
[56]Ibid 392–4.
[57]Exhibit P78 (‘Royal Melbourne Hospital records for Andrew Baker for the period 14 April 2017 to 17 April 2017’). See also, eg, Exhibit P66 (n 54) 104.
Sexual jealousy and anger by the accused in response to S Gatt’s lack of perceived loyalty to him are therefore capable of being viewed by the jury in the context of the evidence of previous episodes of intense emotional outbursts and violence between S Gatt and the accused, which is evident in the previous police attendances where S Gatt complained about the accused; letters and notes written by the accused; admissions made by the accused in his ROIs to fighting with S Gatt and punching a hole in the wall at the Lambeth St premises;[58] and the evidence of Crown witnesses about the troubled nature of the accused’s relationship with S Gatt.[59]
[58]See, eg, the evidence of Kerren Clarke contained at Transcript (n 13) 306 [10]–[15]; Exhibit P67 (‘Field interview with Andrew Baker 6 January 2018’) 24 Q 227.
[59]See, eg, the evidence of Justin and Flavio contained generally at Transcript (n 13) 725–92 and 395–414 respectively.
The jury may also consider that the accused continued to nurse feelings of anger and possessiveness towards S Gatt and jealousy about Leona after the putative period of S Gatt’s death, which is indicative of the depth and strength of the accused’s feelings relevantly before her death. In a letter dated 13 June 2017, the accused is alleged to have relevantly written:
I miss seeing you bad because your my family & maybe wife to be I want us to be happy together Im not letting you go your my girl & always will I hoping we can carry on beening together Im dont want that bitch to have you I dont like the way she tells you to do things when you were with me if i have to get you to move into my new place ...[60]
[60]Exhibit P63 (‘Envelope without postmark and envelopes contents found in backpack Mountfield street 784-791’) (emphasis added) (‘Exhibit P63’).
In his police ROIs, the accused made numerous comments expressing anger, jealousy and a high degree of hostility towards both S Gatt and Leona. In his second ROI, when asked about Leona, the accused responded: ‘She's a lesbian bitch, mate. That's it. She cheated behind my back with my missus’.[61] Later in the same interview, the accused was asked why he had written S Gatt a letter (sent to her house and postmarked 15 September 2017) after he had found her body in the bathtub. He responded: ‘I can't remember. ‘Cause I loved the fuckin’ bitch, simple.’[62]
[61]Exhibit P69 (‘Second record of interview with Andrew Baker, commencing 17 September 2018 at 9.11am’) 161 Q 1587.
[62]Ibid 199 Q 1927.
Trent Mitchell (‘Trent’) recalled having a conversation with the accused at Ozanam House in September 2017, in which the accused said S Gatt had ‘run off with a lesbian’ and appeared ‘pretty pissed off’ about this.[63] Trent also recalled that the accused had said ‘he wished the c-u-n-t was dead’, referring to S Gatt.[64] These statements are difficult to reconcile with assertions that the accused loved and cared for S Gatt.
[63]Transcript (n 13) 189 [1]–[5].
[64]Ibid 189 [8]–[9].
In the context of the above foregoing evidentiary observations, it would be open for the jury to infer that the accused murdered S Gatt because of emotions of intense anger and jealousy.
In letters and notes and in his police ROIs, the accused also makes many references to the sexualised positioning of S Gatt’s body in the bathtub, including the lotion bottle that was placed between her legs, and the pants and underwear being pulled down as if she had been ‘raped’.[65] He mentioned these matters whilst sometimes implying that this meant Leona was responsible for or linked to her death. For example, an undated letter relating professions of love for S Gatt was found by investigating police in the accused’s backpack, and relevantly records:
[F]unny that chick everybody seems to die around her & dont want that happening to you … miss having a shower with you & you being around with me …[66]
[65]Exhibit P62 (‘Floral notebook found in backpack in the bedroom in Mountfield street 766-773’).
[66]Exhibit P63 (n 60) (emphasis added).
Whilst this letter is undated, it is located in an envelope with letters dated 13 and 14 June 2017, which respectively state:
Im not letting you go … im dont want that bitch to have you…;[67]
and
I thought we were happy until that chick i hate around you…[68]
[67]Ibid (emphasis added).
[68]Ibid.
Some of these remarks made by the accused about S Gatt and Leona are linked to alleged POIC, and are relied upon by the Crown in that way. It is also open to the jury to find that they represent a scornful attitude towards S Gatt, particularly in relation to her relationship with Leona, that began before her death and continued after it.
Incriminating conduct
The Crown rely on a significant body of POIC or lies, by which the Crown allege that the accused created a false trail in which he asserted – for many months following S Gatt’s death – that she was in a psychiatric hospital. I have already ruled that the POIC conduct is admissible, and is capable of going to both the charge of murder and any alternate charge of manslaughter. The POIC is, however, further circumstantial evidence by way of implied admissions from which the jury could infer that the accused knew S Gatt was dead (both before and after the August 2017 visit to the Lambeth St premises) because the accused murdered her. I otherwise refer to my separate ruling on the POIC and will not repeat the substance of that decision here.
The open inferences
On the basis of the evidence I have referred to in this ruling, in my opinion it is open to the jury to draw the following inferences:
(a) That S Gatt died on or about the period 19 to 23 April 2017;
(b) That S Gatt did not die of natural causes or accident;
(c) That S Gatt met with a violent death;
(d) That in the lead-up to S Gatt’s putative time of death, the accused was intensely jealous of and angry about S Gatt’s relationship with Leona and/or her involvement with other men;
(e) That the accused was motivated to act in a violent manner towards S Gatt due to his intense feelings of jealousy and resentment surrounding her relationships with Leona and other men;
(f) That on or about the period 19 to 23 April 2017 the accused killed S Gatt at the Lambeth St premises;
(g) That the accused not only caused S Gatt’s unlawful death, but did so with the requisite murderous intent necessary to be guilty of the offence with which he has been charged on the Crown’s indictment;
(h) That the lies told by the accused concerning S Gatt’s admission to a psychiatric hospital were a deliberate attempt to cover up her death, and are evidence that he knew she was dead and that he was responsible for that death;
(i) That the accused’s conduct and related lies in taking Natalie Dibnah, Mr Gabriele and (later) Leona to the Lambeth St premises in August 2017 – under the pretence of cleaning the house so it would be ready for S Gatt when she got out of the psychiatric hospital – were actually for the purpose of staging the ‘discovery’ of S Gatt’s body. It would be open to the jury to infer that, before the August 2017 visit, the accused knew S Gatt was already dead and that it was her body in the bathtub; and
(j) That during and after the August 2017 visit, the accused knew that the body in the bathtub was S Gatt.
Conclusion
I have therefore concluded that the accused does have a case to answer on the Crown’s indictment, and the Defence’s submission to the contrary must be rejected. As discussed by Kaye JA in DPP v Iliopoulos (Ruling No 3)[69] (‘Iliopoulos’), the fact that a reasonable hypothesis consistent with the accused’s innocence may remain open at the conclusion of the Crown’s case is not sufficient for me to uphold a no-case submission.[70] Rather, I must apply the well-established test discussed at the outset of this ruling: whether the jury could rationally conclude that any inference or hypothesis consistent with innocence is not reasonably open on the evidence.[71] In applying that test, and once again drawing on Iliopoulos, it is important to bear in mind that the drawing of inferences in a circumstantial case such as the instant one is essentially the function of the jury, as the sole judges of the facts at trial.[72]
[69]Iliopoulos (n 49).
[70]Ibid [8].
[71]Ibid [9].
[72]Ibid.
For the reasons expressed above, the application of that test cannot, in my view, be resolved in the Defence’s favour, and the no-case submission fails.
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