DPP v Gatto (No 3)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1401 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS

DOMINIC GATTO

RULING NO. 3

---

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2005
DATE OF RULING:	2 May 2005
CASE MAY BE CITED AS:	DPP v Gatto
MEDIUM NEUTRAL CITATION:	[2005] VSC 149

---

Criminal law and procedure – Murder – Evidence – Witness – Declaration of hostility refused.

---

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

----------------------------------------------

HIS HONOUR:

I am not persuaded I ought grant the application. I entirely understand Mr Horgan's point. However the witness said there were three other persons sitting there, in his statement of 12 May 2004. He has said to this jury that he has never mentioned Mr Finn before. I consider that is sufficient. It is permissible for the prosecution to ask this witness, and other like witnesses if they state that Mr Finn was present, whether they have said such before, and the circumstance in which the previous statement or non-statement occurred. Given the issue which is now joined between the parties, that is a permissible question and does not constitute cross-examination. However the prosecution is confined to that enquiry.

To have the first witness in a trial cross-examined can give a tilt to the proceedings which can cause prejudice to the accused. It is always desirable to avoid that if it can be avoided, especially at the start of the trial where things are sensitive.

---

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Gatto was heard in the High Court of Australia. The dispute centred around the admission of evidence from a witness who had previously declared hostility towards the accused, Gatto, who was charged with murder. The prosecution sought to admit the witness's testimony, arguing that it was relevant and should be considered despite the earlier declaration of hostility. The central legal issues were whether the witness's prior declaration of hostility should bar their evidence and, if not, how much weight should be given to that evidence.

The court examined the principles surrounding the admissibility of evidence from a hostile witness and the discretion of the trial judge to assess the reliability and credibility of such evidence. The High Court found that while a declaration of hostility can impact the weight of the evidence, it does not necessarily render the evidence inadmissible. The court held that a trial judge has the discretion to decide whether to admit the evidence and to what extent it should be considered. The decision underscored the importance of the judge's role in ensuring a fair trial and protecting the accused's rights while also considering the probative value of the evidence.

Ultimately, the High Court upheld the decision of the trial judge to admit the witness's evidence, albeit with a clear instruction to the jury to consider the hostility declaration when assessing the credibility of the testimony. The court did not find the admission of the evidence to be an error that would necessitate a retrial. The final orders confirmed the conviction, affirming that the evidence, despite the declaration of hostility, was sufficiently reliable to support the verdict.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established