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[2022] VSC 706
General information, not legal advice.
Supreme Court of Victoria
2022-11-21
Jane Dixon J
Original judgment source is linked above.
1 The Crown filed a Notice of Incriminating Conduct on 2 August 2021 ('Crown's Notice') which complies with the notice provisions under s 19(1) of the Jury Directions Act 2015 ('JDA'). The Crown's Notice is attached to this ruling as Annexure 'A'.
2 The Crown's Notice sets out 14 items that it relies on as incriminating conduct. The Court is only required to rule on two items, being items d) and e), in the Crown's Notice at this early stage. The questions for the Court are whether, on the whole of the evidence, these items are capable of being viewed by a jury as incriminating conduct, and whether the Crown should be permitted to rely on them in their opening address to the jury on that basis.
3 The background to the case against the accused has been described in the first of these rulings,[1] which concerned objections to certain hearsay utterances by the deceased, S Gatt.
4 Division 1 of the JDA regulates the admission and use of evidence of incriminating conduct. The relevant provisions are set out as follows: s 18 defines key terms; s 19 concerns notice requirements; s 20 sets out the test for admissibility of incriminating conduct evidence; s 21 concerns mandatory directions to be given to a jury if the prosecution relies on evidence of incriminating conduct; and ss 22 and 23 address certain additional directions that may be given. The focus of this ruling concerns ss 18 and 20.[2]
5 Regarding item e) of the Crown's Notice, the Defence have already addressed arguments concerning the admissibility of the letters and notes found at the Mountfield St premises.[3] However, the Defence seek to further agitate that those letters are not admissible as evidence of incriminating conduct, and they submit that the Crown ought not to be permitted to use them as evidence that the accused murdered S Gatt and then set about doing certain things to create a 'false trail'. The Defence have not hitherto raised any other argument about item d) and their arguments were therefore directed to that item wholly on the basis that it is not admissible as incriminating conduct.
6 The Crown have made plain that they intend to open their case to the jury on the basis that the accused murdered S Gatt and then acted to divert suspicion away from himself by creating a false trail.
7 The Crown have indicated during oral arguments that not all of the items listed on the Crown's Notice will ultimately be relied on in that fashion, and accordingly, will not be referred to as such in their opening. However, in a general sense, they will open the case on the basis that after killing S Gatt, the accused falsely represented to others that S Gatt was in a psychiatric hospital, adopted a ruse that she was still alive, and took others to see the body in the bathroom as if to imply he had just discovered it.
8 There now being some agreement between the parties about the permissible extent to which the Crown may open their case on the conduct said to constitute 'false trail' evidence, it falls to the Court to rule on items d) and e) in a provisional way. That being said, whether or not the matters are ultimately allowed to go to the jury as incriminating conduct will not be finally determined until the conclusion of all the evidence at trial.[4]
9 The relevant provisions of the JDA are as follows:
10 Section 18 provides:
In this Division -
conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
incriminating conduct means conduct that amounts to an implied admission by the accused -
(a) of having committed an offence charged or an element of an offence charged; or
(b) which negates a defence to an offence charged;
offence charged includes any alternative offence.
11 Section 20 provides:
(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless -
(a) the prosecution has given notice in accordance with section 19; and
(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.
[T]he test which I must consider is not whether standing alone the only reasonable inference to be drawn from that conduct is that the accused acted as she did because of a belief that she had murdered the deceased without justification. Rather, it is plain that the question must be considered in the context of all the evidence in the case and the background circumstances to it.[6]
13 I have been asked to rule on whether certain items of evidence can be opened by the Crown as incriminating conduct by way of setting up a false trail. I have approached the determination of this issue on the basis of the current Summary of Prosecution Opening, bearing in mind the wording of s 20 and the approach discussed by Kaye JA in Zhuang.
Item d) - Use of the mobile telephone number ending 802
14 Item d) concerns an application by the Crown to adduce evidence that after S Gatt's putative date of death, the accused staged text message communications between his own phone and a phone number registered to an acquaintance of the accused, Mr Riggio ('the 802 number'). The 802 number was stored as a contact in the accused man's phone under the initials 'SJ', ostensibly being the number for S Gatt.[7] The Crown's Notice refers to 'use and involvement with the use by others of the 802 number'. The text message communications via phone are alleged to have been staged by the accused in order to maintain the pretence that S Gatt was still alive and staying at a psychiatric hospital, and that he was in contact with her, notwithstanding that S Gatt had not been seen for some time.
15 The Crown's Notice incorporates allegations of the accused engaging in text message communications from 2 July 2017 to 2 January 2018[8] with the 802 number, along with an allegation that the accused was involved in the setting up of the 802 number on 28 June 2017. The notice also refers to conduct by the accused relating to assertions made in his diary that the 802 number was used by S Gatt or by someone caring for her and that he later blamed others for using the 802 mobile number, as well as attempts to minimise his friendship and contact with Riggio. The Crown says that this alleged conduct forms part of the 802 number 'false trail' evidence.
16 The Defence disputed the argument that item d) was capable of sustaining the inference that the accused used the 802 number to create a false trail.[9] The Defence submitted that there is no evidence that the accused had any involvement in the process of creating or registering the 802 number, nor was there evidence that the accused actually knew that the 802 number was not being used by S Gatt in the early stages before her body was discovered. The Defence dispute that the inference is open that the accused knowingly engaged in text message communications with the 802 number with the understanding that the messages purporting to be from S Gatt were staged.
17 The Defence argued that a jury would have to be satisfied that the accused was the killer before they could use the 802 number evidence as evidence of creating a false trail. It was submitted that this involves a kind of 'bootstraps logic'. The Defence submitted that if the Crown could prove that the accused knew that the phone was registered for that purpose, the reliance on the evidence would not be bootstraps logic. Mr Saunders argued that the nexus is whether the Crown can prove that the accused knew that the phone was falsely registered for that purpose.[10] The Defence accept that the conduct as framed in the Crown's Notice, if proven, might be reasonably capable of being viewed by the jury as evidence of incriminating conduct, but maintained that the evidence does not support the inference that the accused engaged in the conduct alleged.
18 In response, the Crown pointed to evidence establishing that that the 802 number was set up within a very short period of time subsequent to S Gatt's putative date of death, and that messages were sent from the 802 number to the accused's number. The Crown queried as to what possible explanation there could be for setting up the 802 number, if not for the purpose of supporting the accused's alleged ruse that S Gatt was still alive. The Crown drew attention to the relevant test, being whether this evidence is reasonably capable of being viewed by a jury as incriminating conduct. The Crown submitted that the fact of the messages being sent from the 802 number was a powerful plank of the Crown case in establishing that the accused was setting up this ruse to deflect blame, because he was the person responsible for the murder of S Gatt.[11]
19 It appears that there are two central aspects to this item of evidence. The first is whether the accused was knowingly involved in the creation of the 802 Riggio phone number for the purpose of faking communications with S Gatt during the period she was missing. The second question is whether the accused engaged with the 802 number (regardless of how it was created) for the purpose of faking communications with S Gatt when she was missing.
20 I consider that, while proof of involvement in the registration of the 802 number would make the conduct a stronger item of incriminating conduct evidence, even if the evidence only shows the accused's engagement with the 802 number as being for the purpose of staged communications, such conduct is reasonably capable of being viewed by a jury as evidence of incriminating conduct. The Crown's position is that the number was set up on 28 June 2017 and that communications between the accused man's phone and the 802 number between 3 July 2017 and 3 January 2018 were staged for the purpose of maintaining the ruse that S Gatt was still alive or that he believed that to be so, thereby concealing the accused's role in her death. It should be noted that some of the allegedly staged text message communications between the accused and S Gatt appears to have occurred after the 'August revelation visit',[12] when on Mr Gabriele's evidence, the accused had said about the body in the bath: 'I think it's fucking Sarah'.[13]
21 The allegation that the accused engaged in staged text communications with the 802 number must be viewed in context with the other admissible evidence of his alleged post-offence conduct. This includes evidence of the accused informing others that S Gatt's absence was due to her being admitted into a psychiatric unit, delivering a letter to S Gatt's address after her putative date of death, and the alleged pretence involved in the 'August revelation visit'.
22 On the basis of the whole of the admissible evidence, it is open for a jury to infer that at the time the accused was conducting the text message communications with the 802 number, he knew that the number did not belong to S Gatt and that he knew he was not communicating with S Gatt via that phone number. The Defence have raised alternative explanations for the 802 number evidence, including that the conduct is also consistent with wanting to continue receiving S Gatt's Centrelink benefits, or wanting to avoid being wrongly blamed for her disappearance or death. However, the availability of these other explanations does not negate the admissibility of the evidence as potential incriminating conduct evidence. While it will be open to the Defence to put forward these alternative explanations to the jury, I am satisfied that the evidence is reasonably capable of being viewed by the jury as evidence of incriminating conduct. I reject the submission that the Crown's case relied on 'bootstraps logic' and that the admissibility of the 802 number evidence as incriminating conduct is dependent on the Crown proving that the accused was involved in the setting up of the phone number.[14]
23 As to whether the evidence is capable of also proving the accused man's involvement in the setting up of the phone number,[15] it remains to be seen by the end of the trial whether this fact can be established on the evidence. Accordingly, in presenting its opening, the Crown is not to allege that the accused set up the 802 number as part of a false trail. The Crown ought to limit its false trail allegations to the accused's engagement with the 802 number for staged communications.
24 I conclude that the allegation of staged phone communications between the accused and the 802 number is open to be advanced as evidence of incriminating conduct. When taken as a whole, the admissible evidence is reasonably capable of supporting the inference raised by the Crown, and it would be open to a jury to make such a finding.
25 Given my decision that the communications with the 802 number are admissible as part of the false trail allegation, the remaining aspects of item d) (including the setting up of the 802 number) can be finally determined at the end of the trial in the context of the whole of the evidence.
Item e) - Letters written by the accused to S Gatt
26 The Defence confined their objections to the unsent letters that were found at Mountfield Street where the accused was living shortly prior to his arrest on the basis that unsent letters cannot be evidence of a 'false trail'. The Crown indicated that the only matter for the Court to rule on 'before the trial starts is this setting up of the false trail', with reference to the letters (as well as the text messages discussed above).[16] The Crown submitted that, from the outset of the trial, it should be able to allege that the accused set up a false trail,[17] which includes the allegation that the accused wrote the unsent letters as part of creating a false trail.
27 The disputed letters are located in the depositions as follows:
(a) Appendix R (part 1),[18] Appendix R (part 2)[19] and Appendix R (part 3):[20] The Crown submitted that regarding the letters in Appendix R, from the accused's perspective there was the possibility of the letters being found and that the letters were written by the accused to deflect attention away from himself. They are also consistent with him having knowledge of how she was killed.
(b) Appendix T:[21] The Crown said that they will submit to the jury that the accused set up the text messaging with S Gatt, and yet at the relevant time he writes letters saying he loves S Gatt and refers to her death. The Crown alleges that by the time of writing, he knew she was dead and in the bathtub. The Crown submitted that whether or not this is incriminating conduct or relationship evidence, it is probative and admissible; it is relevant to assessing the accused's credibility and the versions he has provided about S Gatt being 'in an asylum' and that he thought she had run off with Leona.[22]
(c) Appendix U:[23] This is an unsent birthday card for S Gatt, dated 26 July 2017, in which the accused wishes her a 'HAPPY 40TH BIRTHDAY' and professes his love for her. On 25 May 2017, which would have been S Gatt's actual 40th birthday, the Crown submitted that there was no evidence that the accused had attempted to contact her or visit her. Despite articulating that he was trying to find her, there is no evidence that he did in fact try to find her. There was also no apparent contact or attempted contact between the accused and S Gatt on his 50th birthday. The card also contains a suggestion that Leona is the one who was likely to kill S Gatt.[24] This representation was made before the accused had taken Leona to the Lambeth St premises, and as such the Crown submit that the writing of this document was part of the creation of a false trail.
(d) Appendix P:[25] The Crown submitted that the accused said 'Sarah contacted me', but by then he had taken others to see the body (the August revelation visit).[26] Mr Dickie argued that all the comments made in the letter are consistent with the creation of a false trail and can be seen in combination with the other evidence of the false trail, including setting up the phone messages, implying to others that S Gatt was alive and had been contacting him, and telling others that S Gatt was in a mental institution.
28 With respect to Appendices R, P, U[27] and T, the Defence submitted that the items could not be viewed as incriminating conduct because they were all located at the Mountfield St premises and were never sent or delivered anywhere.[28] Where letters were never sent or left at the Lambeth St premises, it was argued they are not capable of being viewed as incriminating conduct of the accused setting out to lay a false trail. In circumstances where the accused cannot be shown to have ever intended for anyone else to read those letters, they could not be used to found the inference that he was laying a false trail.[29] Regarding Appendix P, the Defence also argued that this was a note in a notebook, with no indication it was intended to be sent and was written after the visit to the house. It was submitted that there are a myriad of reasons why the accused might have written such a note after having gone to the house and seen the body.
29 The Defence also submitted that the Crown could not exclude the possibility that such conduct was motivated by: (a) the accused's desire to keep receiving SG's Centrelink benefits; or (b) knowledge or a belief that the deceased was or may be dead, and a desire to avoid being wrongly blamed for her disappearance or death.[30]
30 Regarding Appendix R, the Crown's reliance on the accused's reference in the letters to S Gatt's death or the circumstances of the body as implied admissions was said to be contradictory, confusing, prejudicial and untenable.
31 In summary, the Defence argued that none of the letters/notes found at the Mountfield St premises are admissible as incriminating conduct, and that anything relating to the period after the body was revealed to others during the August revelation visit cannot be interpreted as setting up a false trail.
32 The Crown submitted that Mr Gabriele saw the accused writing letters to S Gatt when the accused was living at the Mountfield St premises, and that it was possible that other people would find and read the letters located there.[31]
33 The Court is therefore required to consider whether the unsent letters found at the Mountfield St premises are reasonably capable of being viewed by a jury as evidence of incriminating conduct, specifically whether they can be considered as part of a 'false trail' in circumstances where the letters were never sent, delivered, or shown to anyone.
34 Regarding the letters found at the Mountfield St premises suggesting S Gatt was still alive, I agree with the Defence that it is speculative to suggest that the accused expected others to find those letters and that he wrote them as part of setting up a false trail. I do not consider that the evidence is reasonably capable of being viewed as evidence of the accused setting up a false trail. Accordingly, the Crown should not open to the jury that the unsent letters are evidence of incriminating conduct, being evidence of creation of a false trail. This does not preclude the Crown from referring to any otherwise admissible unsent letters in their opening, but the Crown should not allege that the unsent letters were part of the creation of a false trail.
35 The evidence of Mr Gabriele that the accused wrote to S Gatt after the putative period of her death might form part of the category of evidence relating to the accused maintaining the pretence to others that S Gatt was in a psychiatric hospital, and therefore admissible as incriminating conduct. That evidence can be assessed at the end of the trial with the other evidence of that kind that is not objected to.
36 As an aside, I note that the contents of the letters disclose knowledge of having seen the body and aspects of the crime scene, and are admissible for that purpose, in the terms set out in my ruling on the letters/notes.[32] It may be that the contents of the letters are better characterised as direct evidence of the accused's state of mind or knowledge, or as admissions. I also note the qualifying remarks of Priest JA in the case of McDonald v the Queen[33] regarding ruminations by the accused in that case and whether the conduct in question was properly characterised as incriminating conduct_._
IN THE MATTER OF Section 19(1) of the Jury Directions Act 2015
Solicitor for Public Prosecutions 565 Lonsdale Street
a) Departing Kensington and ceasing contact with Sarah Gatt
The accused leaving the Kensington area in April 2017 in the manner that he did and for the period that he did and ceasing contact with Sarah Gatt and not attempting to see her or make contact with her is reasonably capable of being viewed by the jury as amounting to incriminating conduct having regard to the timing of Sarah Gatt's death and other evidence.
Sources of evidence: See the Summary of Prosecution Opening (SOPO) for an outline of evidence regarding the timing ofthe accused's departure from Kensington and the timing of Sarah Gatt's death.
b) Text messages to Leona Rei-Paku and attempted contact with her
The texts from the accused to Leona Rei-Paku from 21 April 2017 to 17 May 2017, including texts indicating that Sarah Gatt had returned to be with the accused and texts threatening Ms Rei-Paku, and attempted phone contact with Ms Rei-Paku by the accused are reasonably capable of being viewed by the jury as amounting to incriminating conduct, being attempts by him to ensure Leona Rei-Paku kept away from the scene of the crime and did not discover Sarah Gatt's death at that time.
Sources of evidence: Leona Rei-Paku 351 & 5572 / Kelly Clark 393 /
Appendix CF (CCR) 1496 / ROI 2 (Appendix DP) 2442: Q.1873-1904. See the SOPO for an outline of evidence regarding the timing of Sarah Gatt's death.
The accused's indications to others from late April 2017 to 3 January 2018 that Sarah Gatt was in a psychiatric hospital and that he had spoken with doctors about her hospitalisation, that he heard from Ms Gatt and that he knew about the timing of her release are reasonably capable of being viewed by the jury as lies amounting to incriminating conduct having regard to the evidence that Sarah Gatt was dead and not in hospital.
Sources of evidence: Regarding the lies: Andrew McVeigh 283 / Phillip
/ Flavio Rinvenuto 323 & 5763 / Justin Gabriele 330 & 5858 / Natalie Dibnah 338 & 5843 / Dimitrios Andrianakis 346 & 5778 / Leona Rei- Paku 351 & 5572 / Ahmed Abdellatif 381 & 6013 / Anthony Buckley 483 & 6045 / Christina Downing 434 & 5972 / Edmund Poliness 441 / Ronika Kramer 443 / DSC Stephen Eppingstall 640 / Appendix DM (Record of conversation) 2123 / Police interviews with the accused, including ROI 1 (Appendix DN) 2163: Q.303-317, Q.519-547, Q.696-701, Q.710, Q.753-764, Q.1017, Q.1068- 1073, Q.1080-1096, Q.1297-1322, Q.1487-1488 & ROI 2 (Appendix DP) 2442: Q.595-612, Q.877-923, Q.997-1006, Q.1024, Q.1052-1056, Q.1164. See the
SOPO for an outline of evidence regarding the timing of Sarah Gatt's death.
d) Use of mobile telephone number 0423 549 802 ("the 802 number")
The accused's use and involvement with the use by others of the 802 number and references to the 802 number, including the following:
are reasonably capable of being viewed by the jury as lies and other conduct amounting to incriminating conduct having regard to the evidence that Sarah Gatt was dead and not in hospital and evidence indicating the 802 number was set up and used for the purpose of sending fake messages to support the alleged ruse that Sarah Gatt was in a psychiatric hospital.
Sources of evidence: Regarding the texts: Justin Gabriele 330 & 5858 /
Covert operative 314 at 566 / DSC Stephen Eppingstall 640 / Covert operative 314 - 566 / Covert operative 317 - 620 / Appendix DG 2061 / Appendix DM (Record of conversation) 2123 / Police interviews with the accused, including ROI 1 (Appendix DN) 2163: Q.169-182, 303-317, Q.359- 501, Q.530, Q.567-587, Q.1127-1139, Q.1237-
1247, Q.1507-1518) & ROI 2 (Appendix DP) 2442: Q.267-294, Q.853-873, Q.1786-1796, Q.1852-53 /
Covert recording 17.03.18 (Appendix EX) 4541 / Covert recording 22.03.18 (Appendix FI) 4778. See the SOPO for an outline of evidence regarding the timing of Sarah Gatt's death.
Letters written by the accused to Sarah Gatt between 13 June 2017 and 22 September 2017 suggesting she was still alive are reasonably capable of being viewed by the jury as incriminating conduct having regard to the evidence that Sarah Gatt was dead and that the accused had, by the stage of writing some of the letters, shown others her dead body. References to death and being killed and the circumstances of death, including the blood upstairs, the clothes worn and how the body looked like it had been raped are alleged to be implied admissions by the accused of knowing Sarah Gatt was dead and having been killed violently by the accused.
Sources of evidence: Appendix I 695 / Appendix R 765 / Appendix P 741
/ Appendix T 783 / Appendix U 792. See the SOPO for an outline of evidence regarding the timing of Sarah Gatt's death.
f) Taking Justin Gabriele and Natalie Dibnah to Lambeth Street
The accused taking Justin Gabriele and Natalie Dibnah to 2/57 Lambeth Street, Kensington, and the circumstances of the "discovery" of Sarah Gatt's body, is reasonably capable of being viewed by the jury as incriminating conduct having regard to the other evidence, including the timing of the visit, the claimed reasons for the visit, power being required to be switched on before or at the time of the visit, the accused taking Justin Gabriele to the bathroom to fix a window and the accused's reactions to the discovery of the body, being consistent with efforts by the accused to have others discover the body or for them to be present when the accused pretended to discover the body.
Sources of evidence: Justin Gabriele 330 & 5858 / Natalie Dibnah 338
& 5843 / Police interviews with the accused (multiple questions and answers).
The accused boarding up the bathroom window and turning on the fan is reasonably capable of being viewed by the jury as incriminating conduct in that it is consistent with attempts to reduce the likelihood of Sarah
Gatt's body being found or to delay the body being found by police.
Sources of evidence: Justin Gabriele 330 & 5858 / SC Jessica Gaylard
264 / Const Daniel Williams 271 & 6126 / Interviews with police, including ROI 1(Appendix DN) 2163: Q.446-470 & ROC at house (Appendix DO) 2410: Q.69-74, Q.150-159 & Q.250-258.
Evidence of the accused taking Dimitrios Andrianakis and Leah Rei-Paku to 2/57 Lambeth Street, Kensington to show them Sarah Gatt's body is reasonably capable of being viewed by the jury as incriminating conduct in that it is at odds with a person who genuinely cared for Sarah Gatt and who did not know in advance that she had been killed and is consistent with the accused's alleged ruse of simply stumbling upon her body.
Sources of evidence: Dimitrios Andrianakis 346 & 5778 / Leona Rei-
The accused's failure to disclose the body to police and his subsequent lies that he did contact police are reasonably capable of being viewed by the jury as incriminating conduct in that there is no record of the accused having contacted police (and other evidence suggests he did not) and his failure to report the body is at odds with a person who genuinely cared for Sarah Gatt and who did not know in advance that she had been killed and is consistent with attempts by the accused to reduce the likelihood of her body being found or to delay her body being found by police.
Sources of evidence: Covert operative (CO) 314 - 566 / CO 317 - 620 /
j) Pretending the body was not the body of Sarah Gatt
The accused's claims to others that the body at 2/57 Lambeth Street, Kensington was not the body of Sarah Gatt is reasonably capable of being viewed by the jury as incriminating conduct in that it conflicts with where the body was found, the items found with the body (including clothing familiar to the accused) and the other circumstances of Sarah Gatt not having been seen for many months and is consistent with the accused's allege ruse of simply stumbling upon a body in the unit and is consistent with attempts by the accused to reduce the likelihood of Sarah Gatt's body being found or to delay her body being found by police.
Sources of evidence: Justin Gabriele 330 & 5858 / Natalie Dibnah 338
& 5843 Dimitrios Andrianakis 346 & 5778 / Leona Rei-Paku 351 & 5572 / Interviews with police, including ROI 1 (Appendix DN) 2163: Q.890-992, Q.1479-1485, Q.1725-1733 & ROI 2 (Appendix DP) 2442: Q.324-391, Q.434-461, Q.473-479, Q.613-639, Q.650-657 Q.1776-1872, Q.1914-1949.
The accused's claims that he saw bright red blood on the upstairs hallway are reasonably capable of being viewed by the jury as amounting to incriminating conduct, being implied admissions that he saw the blood at the time it was actually splattered on the wall rather than months later.
Sources of evidence: Mark Gellatly 464 & 6149 / Interviews with police
(ROC at house (Appendix DO) 2410: Q.53-58, ROI 1 (Appendix DN) 2163: Q.945-955, Q.1627-1644) & ROI 2 (Appendix DP) 2442: Q.333-391, Q.490- 494, Q.640-649.
The accused's descriptions of seeing bruising on the body of Sarah Gatt is reasonably capable of being viewed by the jury as incriminating conduct being an implied admission that he saw the bruising shortly after it was inflicted rather than months later.
Sources of evidence: Covert operative 314 at 566 / ROI 1 (Appendix DN)
Q.1692-1702 / Covert recording 22.03.18 (Appendix FI) 4778.
The accused's descriptions in his interviews and covertly recorded conversations of how Sarah Gatt was killed, including the following:
are reasonably capable of being viewed by the jury as incriminating conduct, being implied admissions that the accused was present at the time of the infliction of the injuries and that he inflicted them.
Sources of evidence: Mark Gellatly 464 & 6149 & other forensic
evidence (set out in the SOPO) / Interviews with police & covert recordings (outlined above).
n) False claims that the body was missing its head
The accused's claims in his interviews and recorded conversations that Sarah Gatt's body was missing its head are reasonably capable of being viewed by the jury as lies amounting to incriminating conduct having regard to the evidence that the body did have a head, albeit it was not possible to determine if there had been injuries to the head.
Sources of evidence: Forensic evidence (see SOPO) / CO 314 at 566 /
ROI 1 (Appendix DN) 2163: Q.1447-1456, Q.1648 / ROI 2 (Appendix DP) 2442: Q.705-708, Q.1114-
22.03.18 (Appendix FI) 4778 & (Appendix FK) 5005 & 01.04.18 (Appendix FR) 5096.
The accused's initial denials to police that he had not been to the Lambeth Street unit in the past 6 months and was not aware of a dead body at the unit are reasonably capable of being viewed by the jury as lies amounting to incriminating conduct, being attempts to falsely distance himself from the crime scene, having regard to evidence that he did attend the unit.
Sources of evidence: Covert operative 314 - 566 / ROI 1 (Appendix DN)
SOPO for an outline of evidence indicating the accused attended the unit, including later admissions by the accused.
p) Claims of only attending Lambeth Street once or twice
The accused's claims that he had only been to the Lambeth Street unit once or twice since April 2017 are reasonably capable of being viewed by the jury as lies amounting to incriminating conduct, being attempts to falsely distance himself from the scene of the crime, having regard to evidence that he had attended the unit on more occasions.
Sources of evidence: ROI 1 (Appendix DN) 2163: Q.1148-1169, Q.1350-
1352, Q.1408, Q.1417-1419). See the SOPO for an outline of evidence indicating the accused attended the unit.
q) False claim to have spent his 50th with Sarah Gatt
The accused's claims to police that he spent his 50th birthday with Sarah Gatt are reasonably capable of being viewed by the jury as lies amounting to incriminating conduct having regard to the evidence that he did not spend his 50th birthday with Sarah Gatt.
Sources of evidence: ROI 1 (Appendix DN) 2163: Q.661-681, Q.1524-
1526, Q.1828-1835). See the SOPO for an outline of evidence regarding the timing of Sarah Gatt's death.
r) Claim the power was on at Lambeth Street when he attended
The accused's claim to police that, when he attended 2/57 Lambeth Street, Kensington in August 2017, the power was connected, the lights were on and the fan was operating, are reasonably capable of being viewed by the jury as lies amounting to incriminating conduct having regard to the proximity of the electricity being turned back on and his attendance.
Sources of evidence: Jemena Records (Appendix BH) 1262 / ROI 1
[1] DPP v Andrew Baker (Ruling No 1) [2022] VSC 704 ('Ruling No 1').
[2] There is no dispute that appropriate notice has been given under s 19 of the Jury Directions Act 2015 ('JDA'). At this preliminary stage, I need not decide what specific jury directions may be required regarding each item of evidence relied on by the Crown as incriminating conduct.
[3] DPP v Andrew Baker (Ruling No 2) [2022] VSC 705 ('Ruling No 2').
[5] [2014] VSC 276 ('Zhuang').
[6] Ibid [23], citing R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [64], [66].
[7] The 802 Riggio phone was seized by police from Giuseppe Riggio (allegedly an associate of the accused) and Riggio was subsequently interviewed by police. The contents of the 802 Riggio phone were downloaded and analysed by police. D/S/C Allan made a statement that the accused identified the phone number as one being used by S Gatt. Subscriber details showed it was registered to Riggio and the phone was found in Riggio's garage. When interviewed (twice) Riggio explained how the phone contact between his 802 phone and 'Tony's' phone was arranged (seemingly a reference to the accused), Riggio was in Italy at the time certain witnesses were subject to preliminary examination.
[8] Messages suggesting S Gatt was alive and in psychiatric care, and that he believed this to be the case.
[9] Preliminary Argument Transcript, 21 June 2022, 352.
[10] Preliminary Argument Transcript, 21 June 2022, 354.
[11] While evidence of incriminating conduct may be relied on by the Crown as proof that the accused killed S Gatt, I am yet to hear argument from the parties about whether the jury would be entitled to use it to infer the specific intent required for murder as opposed to the basic intent required for manslaughter, see DPP v Ristevski (Ruling No 1) [2019] VSC 165.
[16] Preliminary Argument Transcript, 21 June 2022, 350:9-21. See also 363:14-21. The Crown's Notice in relation to the letters/notes is put in broader terms and refers to letters written by the accused to S Gatt between 13 June 2017 and 22 September 2017 where the letters or the writing of the letters implies she was still alive, although by the time of writing them he had already shown the body in the bathtub to others in the August revelation visit. The Crown's Notice incorporates references by the accused within the letters to S Gatt's death and being killed and to circumstances such as the blood upstairs, the clothes worn and how the body looking like it had been raped. These references are relied on by the Crown as implied admissions by the accused to knowing S Gatt was dead and had been violently killed by the accused.
[17] Preliminary Argument Transcript, 21 June 2022, 351:1-3.
[20] Depositions 768-773 (the nine page unsent letter dated 22 September 2017).
[21] Depositions 784-791 (dated and undated unsent letters).
[22] Preliminary Argument Transcript, 20 June 2022, 310.
[23] Depositions 793-5 (unsent birthday card for S Gatt dated 26 July 2017).
[24] Depositions 795: 'that bitch the Kiwi one I remember she told you at the start she came here to take your life'.
[25] Depositions 746 (multiple pages in a note book).
[26] Mr Dickie referred to the contents of the letters that said 'Sarah contacted me because she needed my help but nothing happened'; 'I don't want her back in my life', 'for nothing, she's just a troublemaker. I'll leave it until she contacts again. I don't need that shit at the moment. Still no answer, fuckin' bitch'.
[27] The Defence pointed out that S Gatt's birthday is 26 May, not 26 July as written on the card.
[28] For example, the letters were never sent or left at the Lambeth St premises (to therefore give the impression she was still alive).
[29] Preliminary Argument Transcript, 21 June 2022, 352.
[30] The Defence also submitted that the references to the state of the body of S Gatt appear to have been written after the accused went to the house with several other people (referring to the August revelation evidence), and so have no value as implied admissions and his comments are not probative as incriminating conduct or implied admissions. As I have only been asked to rule on whether the letters are part of a 'false trail', it is not necessary to address the point at this stage (Preliminary Argument Transcript, 21 June 2022, 356:13-15).
[31] The Crown also made submissions on the things the accused said in the letters, as showing an awareness of circumstances connected to the death of Ms Gatt, however as I have only been asked to rule on the question of whether the letters are evidence of a 'false trail' it is not necessary to rule on this issue.
[33] [2013] VSCA 128 [60].
DPP
Andrew Baker
(2006) 16 VR 26