R v Gatt (No 3)

[2018] NSWSC 427

Supreme Court

New South Wales

Medium Neutral Citation:	R v Gatt (No 3) [2018] NSWSC 427
Hearing dates:	6 April 2018
Date of orders:	06 April 2018
Decision date:	30 April 2018
Jurisdiction:	Common Law - Criminal
Before:	Schmidt J
Decision:	Leave sought under s 38 granted.
Catchwords:	CRIMINAL LAW – evidence – application under s 38 of the Evidence Act – leave sought granted
Legislation Cited:	Evidence Act 1995 (NSW), s 38
Category:	Procedural and other rulings
Parties:	Regina (Crown) Joseph Gatt (Accused)
Representation:	Counsel: Mr A Robertson (Crown) Mr P Boulten SC (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) The Law Practice (Accused)
File Number(s):	2014/186944
Publication restriction:	Nil

Judgment

1. Under s 38 of the Evidence Act 1995 (NSW), I granted the Crown leave to cross examine one of its witnesses, Mr John Terepo, about evidence he had given which was unfavourable to the Crown case and/or inconsistent with prior statements which he had made, either to police when he was interviewed on the night of Bassil Hijazi’s murder in 2013, or at the committal hearing in 2015.

2. The accused did not object to the leave sought being granted and it was accordingly granted, I being satisfied that the requirements of s 38 were satisfied on the evidence on which the Crown relied, which established that much of Mr Terepo’s evidence was unfavourable to the Crown case and, in part, inconsistent with his prior statements.

3. Mr Terapo said repeatedly that his memory of the night of Bassil Hijab’s murder was bad, his memory having been affected by his drug abuse. He said repeatedly that he could not recall events of which his ERISP established he had a memory when interviewed on the night of the murder. The transcript of the evidence which he gave on committal in 2015 also established that he then also had a clear memory, at least some of those events, including when challenged in cross-examination, as to the details of those events.

4. In the result, his evidence in these proceedings was in various relevant respects inconsistent with his earlier statement and the evidence he had given at committal, in ways which clearly made his evidence unfavourable to the Crown case.

5. In those circumstances I was satisfied that the leave sought by the Crown under s 38 had to be granted.

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Decision last updated: 01 May 2018