R v Gatt (No 10)

During the course of the accused’s address a direction was sought, which the Crown opposed, that “to convict of murder the Crown must prove either that he fired the gun or that he held a gun beyond reasonable doubt.”

It was argued that:

I refused to give that direction being satisfied that, given the competing evidence of Mr Borg and the accused on this and other issues and the alternative basis on which the murder charge was advanced, which the jury must consider, it was unnecessary and potentially confusing to give such a direction, as was the conclusion reached in Burrell v Regina [2009] NSWCCA 163 at [93] – [103].

That was because the question of whether both the accused and Mr Borg were carrying a gun on 29 July 2013, when Bassil Hijazi was murdered, was one of a number of factual disputes arising from the evidence given by Mr Borg and the accused, which the jury will have to consider, in determining whose evidence as to what had happened on 29 July 2013 will be accepted and how, in the result, the question of whether the Crown has met the onus which falls on it to prove beyond reasonable doubt the elements of murder and manslaughter which arise for its determination, will be resolved.

I was satisfied that while it suited the accused’s forensic purpose to isolate this factual issue, the jury’s process of reasoning about what the evidence established about who it was who used the murder weapon and whether both the accused and Mr Borg were armed, did not permit the evidence about this issue to be considered in isolation from the other evidence on which the Crown relied, in the way for which the accused contended. Nor did it require that the jury to treat this factual issue as indispensable to what it had to resolve, given the way in which the Crown advanced its case, including by reference to the circumstantial evidence about the accused’s access to and use of guns including the Beretta which Mr Borg said he produced on 29 July 2013; and which was later found in the accused’s possession; and on which DNA connecting the gun to the accused was found.

Nor could there be any certainty as to the process of reasoning which the jury would follow, in respect of this factual issue, given the direction which it will have to be given as to its obligation not to consider the evidence in a piecemeal fashion, but as a whole.

In the result, the direction sought had to be refused, no matter how the accused intended to advance his case, as to the importance of this evidence to the Crown’s case and the jury’s deliberations.