DPP v Gatto (No 4)

[2005] VSC 150

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. 4

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2005
DATE OF RULING:	3 May 2005
CASE MAY BE CITED AS:	DPP v Gatto
MEDIUM NEUTRAL CITATION:	[2005] VSC 150

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Criminal law and procedure – Murder – Evidence – Witness – Declaration of hostility of further witness 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 refuse the application.  I think it is entirely unfounded.  The witness gave what I consider responsive answers.  It may be when all the dust has settled the jury will be entirely persuaded that Mr Brian Finn was at the table and visible to all and sundry.  On the other hand, the jury may be entirely persuaded that the whole presence of Mr Brian Finn is an orchestrated artifice;  or they may have some position in the middle.  The jury will no doubt decide that at the end of the case with the benefit of the most helpful submissions from Mr Horgan  and Mr Richter.

1. At present, however, I am entirely unpersuaded that this witness ought to be declared hostile.  The prosecution has had limited leave to elicit from the witness, if leave jurisprudentially were necessary, the circumstance that he had not previously mentioned Mr Finn;  and, further, his statement may be directly put to him in which Frank was the person who got the nomination, not Brian.  In my view, that is quite sufficient for the prosecution purpose.  I refuse the application for him to be declared hostile, and if the same situation arises with someone else I shall refuse that application as well.

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