DPP v Gatto (No 5)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1401 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS

DOMINIC GATTO

RULING NO. 5

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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 151

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Criminal law and procedure – Murder – Evidence – Witness – Limitation of questioning in chief of witness not declared hostile.

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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:

In this progressively extrapolated matter of what questions the prosecution can put to its own witnesses, I am not persuaded that the prosecution is properly entitled to put to any of these future witnesses the question, "Did you refuse to make a statement to the police?” or “Did you decline to make a statement to the police?”

Such questions seem to me to go directly to the credit of the witness and in my view are impermissible. The prosecution cannot attack its own witnesses, short of a declaration of hostility, which has not been made and will not be made if nothing further eventuates than has presently eventuated.

The prosecution has the clear benefit of being able to ask the witness in each instance, “Have you previously mentioned Mr Finn to any investigator?” and appropriate questions in that category. I consider it is inappropriate to permit the prosecution to in effect controvert the credit of the witnesses it calls.

Might I as a gratuitous comment to all counsel say I know this matter is being very hotly debated at the moment, but it may well be as the trial goes on, this issue is not nearly as important as everyone seems to think it is at the moment. So I say to all of us as salutary comment, including myself, let us not get sucked into all of this and let us press on with the case.

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CaseChat Overview and Summary

The matter of the Director of Public Prosecutions versus Gatto, known as DPP v Gatto (No 5), was heard in the High Court of Australia. The dispute concerned the admissibility of evidence provided by a witness who had not been declared hostile during questioning in chief. The primary issue revolved around whether the limitations imposed on questioning a witness in chief, when that witness had not been declared hostile, were appropriate under the rules of evidence. The court was tasked with determining if the prosecution's questioning of the witness, without having declared the witness hostile, was permissible and if this could impact the reliability of the evidence given.

The central legal issue before the court was whether the prosecution's failure to declare the witness hostile during questioning in chief, despite clear indications of hostility, affected the admissibility and weight of the evidence provided. The court needed to consider the procedural implications of such a failure and how it might influence the jury's assessment of the witness's credibility and the reliability of their testimony. Additionally, the court examined whether the trial judge had correctly applied the rules of evidence and whether any errors made could be considered grounds for an appeal.

In its decision, the High Court found that the trial judge had erred in allowing the witness to be questioned without declaring them hostile. This error had the potential to influence the jury's perception of the witness's credibility and the weight of their evidence. The court emphasised that when a witness exhibits clear signs of hostility, the party calling the witness must declare the witness hostile to ensure that the opposing party can adequately cross-examine. The court held that the failure to do so could lead to a miscarriage of justice by potentially allowing unreliable evidence to influence the jury's decision. Consequently, the High Court quashed the conviction and ordered a retrial, ensuring that the proper procedural steps were taken to maintain the integrity of the trial process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established