R v Gatt (No 7) - [2018] NSWSC 488

Supreme Court

New South Wales

Medium Neutral Citation: R v Gatt (No 7) [2018] NSWSC 488
Hearing dates: 10 April 2018
Date of orders: 12 April 2018
Decision date: 30 April 2018
Jurisdiction: Common Law - Criminal
Before: Schmidt J
Decision:
The disputed evidence is relevant and should not be excluded under s 137 of the Evidence Act 1995 (NSW).

Catchwords: CRIMINAL LAW – practice and procedure – disputed evidence concerning a shooting – whether evidence is relevant – whether it should be excluded under s 137 of the Evidence Act 1995 (NSW) - whether the probative value of the disputed evidence is outweighed by the danger of unfair prejudice to the accused – evidence relevant and should not be excluded
Legislation Cited: Evidence Act 1995 (NSW), s 55, s 65, s 137
Cases Cited: Bayley v R (2016) 260 A Crim R 1; [2016] VSCA 160
CA v R [2017] NSWCCA 324
Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311; [1906] HCA 70
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44
R v Knight [2005] NSWCCA 241
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
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

During the trial, I concluded that disputed evidence concerning a shooting was relevant and should not be excluded under s 137 of the Evidence Act1995 (NSW). These are the reasons.
The Crown’s case is that it was the accused who shot Bassil Hijazi on 29 July 2013 at Bexley, and in the alternative, that he was then involved with George Borg, who later pleaded guilty to his involvement in the murder, in a joint criminal enterprise. Mr Borg has been sentenced for his part in the murder, receiving a combined discount for his plea and both past and future assistance. There are thus issues as to Mr Borg’s evidence about which the jury will be given warnings in accordance with s 65 of the Evidence Act 1995 (NSW).
There were two other shootings. The first occurred at Lakemba, some weeks before the murder. The date is in issue. Then shots were fired at a van in which Mr Gatt was sitting with his then girlfriend, Ms Sawaya, which missed both Mr Gatt and Ms Sawaya, but struck the van near the fuel tank. Forensic examination of the van later led to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gatt (No 7)

Details

AGLC: R v Gatt (No 7) [2018] NSWSC 488
Case: [2018] NSWSC 488
Decision Date: 30 April 2018

CaseChat Overview and Summary

In this case, the defendant, Gatt, was charged with various criminal offences, including murder, in the Supreme Court of New South Wales. The crux of the dispute centred around whether certain evidence concerning a shooting was admissible. Specifically, the prosecution sought to introduce evidence of a prior incident involving the defendant, which they argued was relevant to the case at hand. The defence contested the admissibility of this evidence, contending that it was not relevant and that its probative value was outweighed by the risk of unfair prejudice to the accused.

The central legal issue the court had to address was the relevance and admissibility of the contested evidence under the Evidence Act 1995 (NSW). The court needed to determine whether the evidence was relevant to any fact in issue and whether its probative value was outweighed by the risk of unfair prejudice to the accused, as per section 137 of the Act. The court carefully examined the nature of the evidence and its potential impact on the fairness of the trial.

The Supreme Court held that the contested evidence was indeed relevant to the issues in the case. The court found that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the accused. Consequently, the evidence was deemed admissible. The court emphasised the importance of ensuring that the trial was conducted fairly while also considering the relevance of the evidence to the case.

The court's decision resulted in the contested evidence being admitted. The trial proceeded with this evidence, allowing the jury to consider it in their deliberations. The final orders of the court were to allow the contested evidence to be presented to the jury, ensuring that the trial could proceed with all relevant evidence considered.

Orders