DPP v Gatto (No 3)

[2005] VSC 149

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. 3

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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

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

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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. 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.

1. 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.

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