Citation: R v Gatt (No 7) [2018] NSWSC 488
Court: Supreme Court of New South Wales
Date: 30 April 2018
Judge(s): Schmidt J
Background
The accused stood trial for the murder of Bassil Hijazi, who was shot at Bexley on 29 July 2013. The Crown alleged that the accused fired the fatal shot, or alternatively participated in a joint criminal enterprise with a co-offender, George Borg, who had already pleaded guilty to his involvement in the murder. The defence case was that it was Borg, not the accused, who pulled the trigger, and that the accused had no knowledge of any planned shooting.
As part of its circumstantial case, the Crown sought to adduce evidence of a prior shooting at Hudson Street, Hurstville, on 9 June 2013. Forensic examination of bullet casings recovered from the Hudson Street scene established that they had been fired from the same gun used to murder Bassil Hijazi approximately seven weeks later. CCTV footage from the Hudson Street scene showed vehicles stopping there shortly before police were called.
The accused challenged the admissibility of this evidence, arguing that it was irrelevant and, in any event, ought to be excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice.
Legal Issues
- Whether the Hudson Street shooting evidence was relevant within the meaning of s 55 of the Evidence Act 1995 (NSW)
- Whether, if relevant, the evidence should be excluded under s 137 of the Evidence Act 1995 (NSW) because its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Relevance. Schmidt J held that the evidence was relevant. Relevance under s 55 does not require evidence to prove a particular issue by itself; it requires only that the evidence, taken together with other evidence in the case, could rationally affect the assessment of the probability of a fact in issue. In a circumstantial case such as this, the Crown does not need to establish each individual fact beyond reasonable doubt. The Hudson Street evidence formed part of the broader circumstantial picture going to context, background, motive, and the accused's connection to the murder weapon.
Evidence of motive bears on the probability that the accused committed the act charged, and evidence of background and context is admissible as circumstantial evidence where it could rationally affect the assessment of a fact in issue. The Crown was not relying on the evidence for a tendency purpose; it sought to use it to illuminate the accused's connection to the gun later used in the murder and to establish the context in which the killing occurred.
Section 137 exclusion. Schmidt J declined to exclude the evidence under s 137. The jury was already going to receive evidence of the accused's involvement in drug supply, firearms possession and use, and his and Borg's prior conflict with Bassil Hijazi. In that context, the Hudson Street evidence did not materially increase the risk that the jury would take an adverse view of the accused or engage in tendency reasoning.
The Crown did not contend that the Hudson Street evidence proved it was the accused who fired the weapon on that occasion. It was one strand of a broader circumstantial case. The court was satisfied that appropriate directions, including directions about Borg's evidence, tendency reasoning, and how circumstantial evidence must be approached, would adequately address any risk of misuse. The court concluded there was no real danger that the jury would be unable to follow those directions or that the evidence would produce an unfair emotional reaction against the accused.
Orders Made
No orders were made in this decision.
Key Takeaways
- In a circumstantial murder trial, prior shooting evidence is capable of being relevant under s 55 of the Evidence Act 1995 (NSW) where it tends to establish the accused's connection to the murder weapon and provides context and motive, even if it cannot, by itself, prove the accused's guilt.
- Relevance does not require that a piece of evidence independently prove a fact in issue; the question is whether, taken together with other evidence in the case, it could rationally affect the probability of a fact in issue (citing Evans v The Queen (2007) 235 CLR 521).
- Under s 137, a court assesses whether the probative value of disputed evidence is outweighed by the danger of unfair prejudice, and where the jury will receive extensive evidence of other offending in any event, additional contextual evidence may not materially increase that danger.
- Where the Crown does not rely on evidence for a tendency purpose, and appropriate jury directions are available to address the risk of misuse, exclusion under s 137 will not automatically follow merely because the evidence discloses criminal conduct beyond the charged offence.
- Evidence of motive in a murder trial, including evidence of prior conflict and association with the murder weapon, constitutes a relevant circumstance that must be weighed alongside all other evidence (citing Plomp v The Queen (1963) 110 CLR 234 and R v Knight [2005] NSWCCA 241).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 65, 137
Cases
- 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
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- 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
- 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