Citation: R v Gatt (No 10) [2018] NSWSC 526
Court: Supreme Court of New South Wales
Date: 30 April 2018
Judge(s): Schmidt J
Background
The accused stood trial for the murder of a man on 29 July 2013. The Crown advanced its case on two alternative bases: first, that the accused personally fired the fatal shot, and second, that he was liable under the doctrine of joint criminal enterprise alongside a co-participant, referred to in the judgment as Mr Borg.
The evidence was contested on several factual fronts. A central dispute concerned whether both the accused and Mr Borg were carrying firearms at the time of the killing. A Beretta pistol later found in the accused's possession, and bearing his DNA, featured in the Crown's circumstantial case.
During the accused's closing address to the jury, defence counsel sought a specific direction from the trial judge about what the Crown needed to prove beyond reasonable doubt in relation to the gun.
Legal Issues
- Whether the trial judge should direct the jury that, to convict of murder, the Crown must prove beyond reasonable doubt either that the accused fired the gun or that he was holding a gun at the time the fatal shot was fired.
- Whether a particular factual issue (who was armed at the relevant time) could properly be treated as an indispensable element of the Crown's case in the way the defence contended.
Decision
Schmidt J refused to give the direction sought. The judge was satisfied that issuing such a direction would be unnecessary and potentially confusing, given the competing evidence and the alternative bases on which the Crown advanced the murder charge. This conclusion was consistent with the approach taken by the Court of Criminal Appeal in Burrell v Regina [2009] NSWCCA 163 at [93]–[103].
The judge found that the question of whether both the accused and Mr Borg were armed was one of a number of factual disputes the jury would need to resolve by considering the evidence as a whole. The direction sought would have required the jury to treat that single factual issue as indispensable, which did not reflect the actual structure of the Crown's case, including the circumstantial evidence concerning the accused's access to and use of firearms.
Schmidt J further observed that there could be no certainty about the precise path of reasoning the jury would follow, particularly given that it would be directed not to consider the evidence in a piecemeal fashion but as a whole. Isolating the gun-holding question as the accused proposed would cut across that obligation and misrepresent the jury's task.
The direction was refused regardless of how the accused intended to frame the significance of that evidence in his closing address.
Orders Made
No orders were made in this decision.
Key Takeaways
- A trial judge may refuse a direction sought by the defence where that direction would single out one factual issue and treat it as indispensable to conviction, in a manner inconsistent with the Crown's actual case theory.
- Where a murder charge is advanced on alternative bases, including joint criminal enterprise, the jury's reasoning process cannot properly be constrained by a direction that presupposes a single factual finding is necessary for conviction.
- The Supreme Court applied Burrell v Regina [2009] NSWCCA 163, confirming that directions of the kind sought are unnecessary and potentially confusing when competing evidence must be weighed as a whole.
- Circumstantial evidence, such as a weapon found in an accused's possession and bearing his DNA, forms part of the overall evidentiary picture the jury must assess globally, not in isolation from other contested facts.
- A forensic purpose served by isolating a particular factual issue does not, of itself, make a direction to that effect appropriate or necessary.
Legislation and Cases Referenced
Cases:
- Burrell v Regina [2009] NSWCCA 163
Legislation:
No specific legislation was cited in the judgment.