AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 30 April 2018

R v Gatt (No 9)

[2018] NSWSC 501

Homicide
CRIMINAL LAW EVIDENCE APPLICATION REFUSED REASONS

Citation: R v Gatt (No 9) [2018] NSWSC 501
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 on 29 July 2013. The Crown's case was circumstantial and included evidence of a prior shooting at Hudson Street, which had already been admitted over objection in earlier proceedings (see R v Gatt (No 7) [2018] NSWSC 489). The Hudson Street evidence was relevant to the question of who had fired the murder weapon.

A key factual dispute ran throughout the trial. A Crown witness, Mr Borg, gave evidence that the murder weapon belonged to the accused, that the accused had fired it at Hudson Street on a prior occasion, and that the accused had shot the deceased on the night of the murder. The accused gave evidence contradicting all of this, attributing ownership and use of the weapon to Mr Borg.

After the accused concluded his evidence, defence counsel brought a fresh application to exclude the Hudson Street shooting evidence from the jury's consideration. The application was made under s 137 of the Evidence Act 1995 (NSW), on the basis that the accused's decision to give evidence had materially changed the landscape since the earlier ruling.

  • Whether the Hudson Street shooting evidence should be excluded under s 137 of the Evidence Act 1995 (NSW), on the ground that its probative value was outweighed by the danger of unfair prejudice to the accused.
  • Whether the cross-examination of the accused, in which it was put to him that he had fired the murder weapon at Hudson Street, created a risk of unfair prejudice that now warranted exclusion of the evidence.
  • Whether the jury could be adequately directed to address any risk of prejudice arising from the way propositions had been put to witnesses in cross-examination.

Decision

Schmidt J refused the application. The judge accepted that the accused's decision to give evidence had altered the position considered in the earlier ruling. However, that change did not tip the s 137 balance in favour of exclusion.

The court found that the Hudson Street evidence retained real probative value. Even though the evidence did not establish that the accused had fired the weapon on that earlier occasion, it remained capable of supporting an inference, when considered alongside all other direct and circumstantial evidence, that it was the accused rather than Mr Borg who had fired the murder weapon on the night of the killing.

On the question of unfair prejudice, Schmidt J was satisfied that appropriate jury directions would adequately manage any risk. The jury was to be told that counsel's questions and propositions put in cross-examination are not themselves evidence, and that the Crown did not assert the Hudson Street evidence proved the accused was the shooter on that occasion. The court was satisfied the jury could be expected to adhere to those directions.

The accused's denial in cross-examination that he had fired the shots at Hudson Street did not, in the court's view, generate the kind of unfair prejudice that s 137 is designed to guard against, particularly given the broader context of the accused's own evidence about his involvement with drug supply and firearms.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), evidence must be excluded only where its probative value is outweighed by the danger of unfair prejudice to the accused; the Supreme Court here found that threshold was not met.
  • An accused's election to give evidence can alter the analytical framework for a s 137 application, even where the same evidence has already been admitted over objection at an earlier point in the trial.
  • Circumstantial evidence does not need to establish a particular fact beyond reasonable doubt on its own to remain admissible; it need only be capable of contributing to an inference when considered together with other evidence.
  • Jury directions explaining that propositions put in cross-examination are not themselves evidence, and clarifying the Crown's actual submissions, can be sufficient to address a risk of prejudice without requiring exclusion.
  • No requirement exists that a jury be satisfied beyond reasonable doubt about each individual item of circumstantial evidence before it may rely on that item as part of the overall case.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 137

Cases:
- R v Gatt (No 7) [2018] NSWSC 489