DPP v Gatto (No 5)

[2005] VSC 151

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. 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:

1. 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?”

1. 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.

1. 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. 

1. 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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