Director of Public Prosecutions v Gatto

[2005] VSC 148

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1401 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOMINIC GATTO

RULING NO. 2

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2005
DATE OF RULING:	28 April 2005
CASE MAY BE CITED AS:	DPP v Gatto
MEDIUM NEUTRAL CITATION:	[2005] VSC 148

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Criminal Law and Procedure – Murder – Evidence – Publication on prohibition order refused – s.18(1)(c) Supreme Court Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr G. Horgan QC with Mr A. Tinney	Solicitor for Office of Public Prosecutions
For the Accused	Mr R. Richter QC with Mr M. Taft	Galbally Rolfe

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HIS HONOUR: 

1. Ms Pavlou on behalf of the Chief Commissioner has responsibly applied for the exercise under s.18(1)(c) Supreme Court Act 1986 for an Order prohibiting the publication of a report of part of the proceedings in this jury trial. The application is made pursuant to the powers in that section and based upon the considerations set forth in s.19(b) in particular, namely, prejudicing the administration of justice in relation to ongoing police investigations.

1. I had previously made appropriate - at least what I considered appropriate - Orders until the matters became evidence in the jury trial.  The material which is not to become evidence in the jury trial should remain part of the confidential police investigative process and I do not need to refer to it further.  However, some material is now to be part of the evidence in the public jury trial.  That material is that Mr Benvenuto was shot and killed with a .38 firearm, Mr Radev with a .357, Mr Kallipolitis with a .38 and Mr Dibra with two weapons, a .22 and a 9mm firearm.

1. I have had every regard to the very helpful submissions made on behalf of the Chief Commissioner and I understand the responsible basis upon which they are made.

1. In Confidential Ruling No. 1 I have set out in detail the relevant submissions appertaining to this matter made on behalf of the Chief Commissioner, and the relevant factual material.  It is not necessary, and is inappropriate because presently the proceedings are in public, to rehearse those matters.  However, I bear those matters in mind.  Mr Pavlou before me today has made reference to those matters categorically, without detailing them.

1. It is of course always important for ongoing police investigations to be conducted appropriately.  Different considerations apply to an investigation on the one hand and a public curial procedure on the other.  We have now reached the point in this trial of the public curial procedure, the jury having been empanelled and the learned prosecutor having opened the case.  During the course of this case, those matters that I have just factually recited will become evidence.  I consider, weighing on the one

hand the entirely proper police interest in ongoing investigations and on the other, the legitimate public interest in having public trials heard publicly, that the latter must prevail.  That does not under-value the former, but it values the latter in the balance as the persuasive consideration.

1. Further, the media have a most important function in the administration of justice, in that court proceedings are public and it is the media who effectively bring part of those proceedings to the public, because of course the public cannot all be physically here in court.  In the Benthamite sense publicity is effected by the bringing of the court to the public via the media.

1. For those reasons I conclude that it is proper and appropriate to refuse the order sought by Ms Pavlou.