Towards the conclusion of the cross-examination of the witness Fortunato Gattellari ("Gattellari"), the Crown foreshadowed an intention to elicit, in re-examination and/or through the evidence in chief of another witness or witnesses, evidence which it submitted arose from that cross-examination. The evidence is contained in a series of intercepted telephone conversations and related documents. Senior counsel for the accused objected to the Crown leading such evidence.
Before dealing with the issues which now arise, there are three matters of common ground which ought be noted.
Firstly, there is no dispute that an organisation known as Elite Cranes is associated with a person by the name of Mick Gatto ("Gatto"). Although the precise nature of Gatto's association with Elite Cranes is not clear on the evidence, that is of no consequence. Secondly, Matt Thomas ("Thomas") is an associate of Gatto and may be colloquially described as Gatto's "offsider". Thirdly, the evidence which is now sought to be adduced by the Crown was served well prior to the commencement of the trial, and was therefore known to those representing the accused when Gattellari was cross-examined.
In order to put the present issues into context, it is necessary to give a short overview, before going to particular aspects of Gattellari's cross-examination.
The accused is charged with the murder of Michael McGurk, and the intimidation of Mr McGurk's wife, Kimberley McGurk. It is the Crown case that the accused organised and financed both the murder and the intimidation. On any view of it, Gattellari is a, if not the, principal witness for the Crown. He has previously pleaded guilty to his involvement in the murder and is currently serving the sentence which was imposed upon him for that offence.
There is evidence that for a number of years Gattellari and the accused were close business associates. That association included the operation of a number of what have been referred to in the evidence as the "electrical companies", into which the accused is said to have invested millions of dollars. The Crown opened to the jury on the basis that at its height, the relationship between Gattellari and the accused was such that they were "joined at the hip". Their relationship subsequently deteriorated significantly.
Gattellari's credit has emerged as a significant issue in the trial. Numerous matters have been put to him the course of in a wide ranging cross-examination. At the close of his cross-examination it was squarely put to him that it was he, and not the accused, who was solely responsible for organising both the murder and the intimidation. Gattellari denied this was the case. The trial is currently approaching the end of its fourth week. Although there have been some lost days due to jurors' illnesses and legal argument, Gattellari has been giving evidence for the majority of that time.
Early in Gattellari's cross-examination (commencing at T552.2) he was asked whether or not he knew Gatto. He said that he did. He told the jury (commencing at T555.5) that Gatto was involved in Elite Cranes and that whilst he (Gattellari) was not aware of Gatto's precise position in that business, he knew enough about its functioning to be aware of Gatto's association with it.
The cross-examination then proceeded (commencing at T555.36) to touch upon Gattellari's dealings with Haissam Safetli. Safetli will not be called by the Crown as a witness in this trial, but on the Crown case he was a participant in the joint criminal enterprise alleged against the accused.
Commencing at T556.34 Gattellari was asked about a transaction which appeared in a bank statement (which became exhibit 1) relating to an account that he held with the ANZ Bank in 2010. Exhibit 1 establishes that on 23 September 2010, $100,000 was deposited from Elite Cranes into Gattellari's account. On 24 September separate amounts of $10,000 and $5,000 were debited from that account. On 30 September a further amount of $10,000 was debited. Having confirmed that these transactions took place, Gattellari was cross-examined as follows (commencing at T556.42):
"Q. Shortly thereafter, the very next day, there are cash withdrawals in the sum of two separate amounts of $10,000 each; correct?
A. Correct.
Q. They are the moneys that you gave to Safetli?
A. Yes.
Q. You didn't get them from Mr Medich, you got them from Mick Gatto?
A. The money was from Mr Medich originally. It was loaned to Mr Gatto, and this was a cash payment by Mr Gatto back to me in response to paying back the $300,000?
Q. Where did the rest of the money go, if it was Mr Medich's money?
A. The rest of what money?
Q. The $100,000 you got off Gatto?
A. It would have been used for company dealings.
Q. You are lying. You got the money to pay these two cash withdrawal payments to Safetli off Mick Gatto, didn't you?
A. The money came back from Mr Gatto, yes.
Q. And you made a request to Mr Gatto, personally, for that sum to be paid into your personal bank account, didn't you?
A. That's correct.
Q. The money did not go into any account owned by Medich; correct?
A. Absolutely correct.
Q. It did not go into any account of a company operated by Mr Medich either; correct?
A. Not at that time or any other time" (emphasis added).
When asked (at T560.3) whether he had provided his personal bank account details to Gatto for the deposit of $100,000, Gattellari confirmed that he had done so.
Gattellari's cross-examination was then directed to matters concerning the conduct of his personal bank accounts, and the role played in the conduct of those (and related matters) by his then assistant, Halena Kmita. At T564.23 the cross-examination returned to the subject of his relationship with Gatto, and the payment by Gatto of the $100,000. Gattellari confirmed the evidence that he had earlier given (and which was evident from exhibit 1 in any event) namely, that $100,000 had been paid to him by Gatto. Commencing at T564.46 senior counsel then took Gattellari to the contents of exhibit 1 and asked the following:
Q. Do you see the deposit on 23 September?
A. Yes, I do.
Q. Of $100,000. What's your memory of when you requested that money to be deposited?
A. I don't have a memory of it. I remember that I was in Hong Kong when I spoke to Mr Gatto, so I'd have to work out when that was. I don't know.
Q. Was there any particular reason why you asked for the money to be deposited in your personal account rather than any account associated with Mr Medich?
A. Yes. The reason it had to be used, it had to come out of my private account and not company accounts.
Q. Why?
A. Well, because moneys paid for illegal matters were never pulled out of company accounts.
Q. Sir, you never lent any money to Mr Gatto, did you? Do you think this is funny?
After I intervened the cross-examination continued (commencing at T565.20):
"Q. The proposition is put to you that you didn't ever lend money to Mr Gatto. Do you agree with that or not?
A. I personally did not, no.
TERRACINI: Thank you.
Q. Did he owe you any money personally?
A. He did not.
Q. Can you advance any reason why he'd be putting $100,000 into your personal account?
A. Because that's the way we did things in those days."
After a further exchange (which is not relevant for present purposes) Gattellari was asked the following question at T565.47:
"Q. Sir, Mr Medich was not made aware that Mr Gatto had put $100,000 in your account, was he?
A. Yes, he was."
The questioning then continued (commencing at T566.2):
"Q. You knew Mr Medich wasn't involved in the murder of Mr McGurk and you were desperately trying to get money from somewhere to placate Hais Safetli, weren't you?
A. Not correct.
Q. You got in contact with Gatto, because you'd had business dealings with him and you put pressure on him to put money into your account?
A. I put pressure on Mr Gatto? I think that is wrong.
Q. Do you say that any of this money was owed by Mr Gatto to Mr Medich?
A. All the money given to Mr Gatto was owed to Mr Medich's company.
Q. Out of the $100,000, did you refund any of it to Mr Medich?
A. I didn't have to.
Q. Did you refund any of the moneys to Mr Medich?
A. No, I did not have to.
Q. You were not entitled to the money yourself at all, were you?
A. I was entitled to use the money as I saw fit.
Q. Sir, what entitlement did you have to this $100,000 that apparently was a debt between Mr Gatto and Mr Medich?
A. Well, the debt between Mr Gatto and Mr Medich was actually organised and delivered by me.
Q. What entitlement did you have to the money? None, did you?
A. I had permission from Mr Medich to use the funds in all the accounts as I saw fit" (emphasis added).
Against this background the Crown has foreshadowed an intention to lead evidence of a total of 11 intercepted telephone conversations. Ultimately, the initial objection taken to two of those calls was withdrawn, leaving a total of nine in dispute.
In addition, the Crown seeks to tender a series of documents forming part of the records of the accused's personal account with the National Australia Bank in 2010. Those documents (to which, as I understand it, there is no objection) establish that:
1. on 7 May 2010, $200,000 was transferred from that account in favour of Elite Cranes;
2. on 10 May 2010, a further $100,000 was transferred from the same account, again in favour of Elite Cranes; and
3. the accused authorised the transfer in each case.
The conversations which are the subject of the present application can be divided into two groups to which I will refer for convenience as "group one" and "group two". Group one comprises two conversations, to both of which the accused is a party. Gattellari is not a party to those calls and, it is not the Crown's intention to seek to adduce this evidence through his re-examination. However, whether such evidence should be admitted is to be determined, at least in part, according to whether the evidence arises out of Gattellari's cross-examination, the Crown's position being that it is partly that circumstance which makes the conversations relevant.
The first of the conversations in group one was recorded on 7 May 2010 between the accused and Thomas. In the course of that conversation the accused is recorded as saying (inter alia) the following:
"RM They confirmed this afternoon we're, we're gettin' - we're puttin' two hundred in from, from the electrical companies and Kim should have that in by Monday but my bank - on the National at, at, at there - he's told me he's already put the two hundred in today. As soon as I got here to the office, I put that in so by Monday [overtalk]
MT (ind).
RM ...you should have the four hundred to get ya out of the initial shit, ya know?"
The overwhelming inference, particularly given the date of that conversation, is that the accused was referring to the transfer of $200,000 to Elite Cranes from his account which took place on that day, and which is established by the documentary evidence to which I referred in [17] above.
The second conversation in group one took place on 23 September 2010, again between the accused and Thomas. It is convenient at this point, in order to put that call into its proper context, to make reference to the two conversations in group two to which no objection is taken.
The first of those conversations on 13 September 2010 is between Gatto and Gattellari. In the course of that conversation, Gatto expressed his regret at not being "in a position to do anything" for Gattellari. The following exchange then took place:
"Gatto: Well, if you need it in the next week or so, I can give it to you.
Gattellari: Yeah.
Gatto: If you, if you need it, Lucky.
Gattellari: Well Mick, if you, if you could, that would be a huge help.
Gatto: All right, well, I'll see what I can do for you in the next week or so, all right, we'll bung it over to you.
Gattellari: Yeah, fantastic mate. I appreciate it."
Ten days later, on 23 September at 3:02pm, Gattellari had a further conversation with Gatto, in the course of which the following exchange took place:
"Gattellari: Hello Mick, how are you? Sorry mate, I'm in a, I'm in a Chinese restaurant in China and it's as loud as all hell.
Gatto: Hey, that money will go in overnight, mate, because (ind) just put it in now."
Towards the end of the conversation, Gatto confirmed that a transfer of $100,000 had been made. What was discussed in that call accords completely with the contents of exhibit 1 as set out in [10] above. The terms of the conversation are also totally at odds with the suggestion put to Gattellari in cross-examination (at [15] above) that he had put pressure on Gatto to deposit the money.
On that same day, 26 minutes after the conversation between Gatto and Gattellari set out in [23] above, the second of the conversations in group one took place between the accused and Thomas. In the course of that conversation, the following exchange took place:
"Thomas: Uncle, did Lucky let you know that Mick's spoken to him and that there's a hundred coming overnight back - back to you?
Accused: No, he didn't tell me that but that, that's the er in the companies that he, he'd normally handles. They normally handle that.
Thomas: Okay, I just wanted to acknowledge that they're gonna start comin' back your way so um just so you're in the loop as well buddy - yeah?
Accused: No worries. Yeah 'cause he rang me - he's got some problem over there, ya know?"
The statements made by the accused in that conversation are at odds with the suggestion put to Gattellari in cross-examination (at [14] above) that the accused was not made aware of the deposit of $100,000.00 by Gatto into Gattellari's account.
Group two contains seven conversations which took place between 24 March 2010 and 12 May 2010. The first, on 24 March, was between Gattellari and Gatto. In the course of that conversation, Gatto asked Gattellari to contribute financially to a charity function that he (Gatto) was conducting in Melbourne.
The second took place on 30 March and was initially between the accused and Thomas, and then between Thomas and Gattellari. There were various discussions about property developments and the like, and towards the conclusion of the conversation, Gattellari confirmed that "We're comin' down in ah June for that ah - that function you guys are putting on", clearly a reference to the function which was discussed between Gattellari and Gatto in the first conversation.
The third took place on 30 April 2010 between Gattellari and Gatto, in the course of which Gatto sought Gattellari's address for the purposes of posting the tickets to the function they had earlier discussed. There were various other references in that conversation to the fact that the accused was going through a divorce with his then wife.
The fourth took place on 3 May 2010 between Gattellari and Thomas. On that occasion, Gattellari again referred to the accused's divorce proceedings and made reference to the accused "borrowing". There is an available inference, from that and the following three conversations in group two, that the accused was attempting to borrow a large sum of money to assist Gatto and Thomas.
The fifth was on 3 May 2010 between the accused and Gattellari in which they discussed borrowing money, strengthening the inference that the accused was making, or endeavouring to make, arrangements to lend money to Gatto.
The sixth was on 12 May 2010 between Thomas and Gattellari. Gattellari told Thomas that he thought they were "pretty right" and that "the documents are going to be signed sometime this afternoon", again an apparent reference to the accused borrowing funds to assist Gatto.
The seventh was on 12 May 2010 between the accused and Thomas. The accused is recorded as expressing his frustration with the requirements imposed by one or more commercial lenders. He indicated to Thomas that he was "going to have it ready for (him) on Monday". Again, on the Crown case, that is a reference to the fact that the accused was attempting to raise a loan to assist Gatto. Even accepting that is an available inference, the evidence is silent as to whether or not that loan ever actually eventuated.
It might be said as a general proposition that the calls in group two establish a business and personal relationship between the accused on the one hand, and Gatto and Thomas on the other. That relationship appears to have extended to a preparedness on the part of the accused to advance what was, inferentially, a significant sum of money to Gatto, and/or Thomas, and/or Elite Cranes. Although the conversation in the final call would tend to establish that the loan had been approved (subject to the execution of relevant documentation) there is no evidence any money was actually advanced by the accused, over and above the $300,000 to which I have previously referred.
In terms of the submissions of the parties, I turn firstly to those made on behalf of the accused. There was some degree of conflation and discursiveness in those submissions but as I understood it, the primary proposition advanced on behalf of the accused was that none of the conversations upon which the Crown now seeks to rely fell within the terms of s 39 of the Evidence Act 1995 (NSW) ("the Act") because they did not arise from Gattellari's cross-examination. Senior counsel for the accused submitted in support of that proposition that "… whole purpose of the cross-examination was to determine that the $100,000 had nothing to do with the electrical companies and was a deposit into Gattellari's personal account and was disbursed in the way that had been established." It was further submitted that the two conversations in group one between the accused and Thomas were hearsay, and thus inadmissible. Senior counsel submitted that in the event that I came to the view that any of the conversations were admissible, they ought be excluded pursuant to s 137.
The danger of unfair prejudice was said to stem, in part, from an inability to question any police officer through whom the calls in group one were to be tendered. Senior counsel further submitted that to the extent the Crown relied on conversations to which Thomas and Gatto were parties, Thomas was "basically some kind of business associate of Gatto" who had a "reputation similar to Gatto". Gatto, it was suggested, was a person of some notoriety. Senior counsel further submitted that both Gatto and Thomas were "dubious" persons, and that any evidence as to an association between them and the accused would be prejudicial to the accused. It might be noted that the initial reference to Gatto was made in course of questions put to Gattellari in cross-examination.
Senior counsel further submitted that the calls in group two went to broad issues which, when properly analysed, were not the subject of any cross-examination of Gattellari. Whilst accepting that a party calling a witness was entitled to re-examine, it was submitted that the subject matter of any re-examination was limited to "issues that arose directly or indirectly out of the cross-examination".
Senior counsel for the accused further submitted that the conversations between Thomas and Gattellari were "not admissible under s 137". As I pointed out at the time, s 137 of the Act confers a power to exclude evidence. It assumes that the evidence is otherwise admissible. To submit that evidence is not admissible under s 137 is apt to confuse.
The Crown submitted that the calls in group one squarely arose from those passages of the cross-examination which I have identified (at [8]-[15] above) and that, as a consequence, they were plainly relevant. The Crown relied, in particular, on those passages of the cross-examination at [14] and [15] above. The Crown submitted that the contents of the conversations in group one, along with the two calls in group two to which no objection was taken, were directly contrary to propositions put to Gattellari in cross-examination (which he denied), and were thus corroborative of his evidence.
To the extent that a hearsay objection was taken to the conversations in group one, the Crown submitted that the statements made by the accused in those calls were (inter alia) admissible pursuant to s 81 of the Act as constituting admissions against interest.
As I understood it, the Crown accepted that the subject matter of the conversations in group two were broader, and thus less specific, than was the case in respect of the conversations in group one. However, the Crown submitted that the matters discussed in the conversations in group two necessarily arose from the width of Gattellari's cross-examination.
In terms of s 137, the Crown submitted that in each case the evidence was highly probative, and that there was no danger of any unfair prejudice to the accused in the event that the evidence were admitted.
The primary issue for determination is whether or not the evidence the Crown now seeks to lead arises from Gattellari's cross-examination. I was not taken by either counsel to any authority which might assist in the resolution of that issue. Section 39 of the Act is in the following terms:
39 Limits on re-examination
On re-examination:
(a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination, and
(b) other questions may not be put to the witness unless the court gives leave.
At common law, the purpose of re-examination was not merely to remove ambiguities and uncertainties. Re-examination was allowed whenever an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts (whether they be facts in issue or facts related to credibility) which was capable of being construed unfavourably to the party calling the witness, and which represented a distortion, or an incomplete account of the truth as the witness was able to present it: see Cross on Evidence (The Hon. J.D. Heydon QC) at [17605] citing R v Lavery (No 2) (1979) 20 SASR 430 and R v Chambers (1848) 3 Cox CC 92.
In Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 Glass JA observed 9at 409):
"It is well established that it is proper in re-examination to elicit from the witness facts which explain away or qualify facts which have been elicited in cross-examination which are prejudicial to the witness' credit or from which prejudicial inferences could be drawn."
Whilst that judgment was delivered prior to the commencement of the Act, in my view, it remains instructive.
In Hadid & Anor v Australis Media Ltd & Anor (No 14) (Supreme Court (NSW), Sperling J, 5 November 1996, unrep) the ambit of s 39, when compared with the position at common law, was considered. Having cited the passage from Cross to which I referred above, Sperling J said:
"A question arises as to whether s 39 is more liberal than the common law. It is a principle of statutory construction that where a statute admits of a wider and of a narrower construction, a construction consonant with the common law is to be preferred."
His Honour went on to make reference to Report No. 26 of the Australian Law Reform Commission in which it was observed that as a matter of principle, re-examination was permissible in every case where the account given in cross-examination would, if left unexplained or uncompleted, not constitute the whole truth. His Honour was of the view that this did no more than re-state the principles set out in the passage from Cross to which I referred at [44] above. His Honour then continued:
"Having regard to the common usage of the expression "arising out of cross-examination" to which I have referred, I read the phrase "arising out of evidence given by the witness in cross-examination", as it appears in s 39, as doing no more and no less than incorporating the principles of the Common Law in relation to re-examination. I do so by implementing the principle to which I have referred, that the statute is to be construed, where possible, to reflect rather than to refute the common law."
In Schipp v Cameron & Others (No 2) (Supreme Court (NSW), Einstein J, 8 October 1997, unrep) ("Schipp (No 2)"), reference was made to Sperling J's judgment in Hadid. Although not expressing a definitive view, some passages of Einstein J's judgment tend to suggest that he reached the conclusion that for the purposes of s 39 of the Act, there must be some ambiguity or distortion arising from the cross-examination to allow re-examination to proceed.
In my view, the evidence must be assessed as a whole for the purposes of determining the implications of the testimony given in cross-examination, and thus determining whether re-examination should be permitted. As Einstein J observed in Schipp (No 2), the conferring of a discretion to permit a witness to be questioned about matters arising out of evidence given in cross-examination requires the court to look extremely closely at the cross-examination on the particular topic, and the significance of the issues dealt with within that cross-examination which divide the parties.
The phrase "matters arising out of evidence given by the witness in cross-examination" which is contained in s 39 is in obviously broad terms. In my view, those terms tend against what appears to have been the somewhat restrictive approach adopted by Einstein J in Schipp (No 2). I have not had the benefit of any submissions as to the extent of any divergence in approach between Sperling J in Hadid and Einstein J in Schipp (No 2). However, it is not necessary to resolve that issue for present purposes because in my view, on the application of either approach, the conversations in group one squarely arise from questions put to Gattellari in cross-examination, and are therefore relevant and admissible.
Left as it is, Gattellari's account as to money advanced from the accused to Gatto, and the repayment of part of that money, is both incomplete and ambiguous. When the passages of cross-examination are read as a whole, the conversations in group one arise squarely from the questions which were asked. It is not the case, as senior counsel for the accused suggested, that Gattellari's cross-examination was restricted to the subject of the payment of the sum of $100,000 to Gattellari from Gatto. The cross-examination extended to it being squarely put to Gattellari that the money originally advanced to Gatto did not come from the accused. Gattellari said, specifically, that the $100,000 he received from Gatto formed part of the $300,000 previously advanced by the accused. The conversations in group one may be capable of lending some support for that conclusion.
Moreover, it was squarely put to Gattellari that the accused was unaware that Gatto had deposited $100,000 into his (Gattellari's) account in September 2010. Gattellari's evidence was that the accused was aware. The second of the conversations in group one, and in particular the statements and acknowledgements made by the accused, are clearly capable of corroborating Gattellari's evidence in that respect.
It may well be that the underlying purpose of the cross-examination was, as senior counsel submitted, to establish that the $100,000 had nothing to do with the electrical companies, and that it represented a deposit into Gattellari's personal account which was later disbursed in a particular way. However the present focus is not upon the purpose of questions which were asked in order to elicit evidence. The focus is upon the evidence that was actually elicited in answer to those questions.
It follows that in my view, the conversations in group one clearly arise from cross-examination and are relevant.
The position with the conversations in group two is less clear. Their content is of a more general nature. There were various subjects discussed in those conversations. They included the accused's relationship with Gatto, and matters personal to the accused such as his then pending divorce proceedings. Although the cross-examination of Gattellari has been wide ranging, I am unable to accept the submission that the conversations in group two arise from questions asked of him, and thus fall within the provisions of s 39. True it is that Gattellari was asked questions about his relationship with Gatto. Some of those questions, it might be said, carried a thinly veiled suggestion that whilst Gattellari had a relationship with Gatto, the accused did not. However, such proposition was never squarely put to Gattellari. In my view, but for those two conversations to which no objection has been taken, the remaining calls in group two are not properly the subject of re-examination. Matters such as the accused's divorce, and his apparent willingness to support the philanthropic endeavours of Gatto, have little relevance to any issue in this trial in any event.
The conclusion that I have reached in relation to the conversations in group one does not dispose of the entirety of the issues. As I have noted, senior counsel's submission was that those conversations were of a hearsay nature and therefore inadmissible. The hearsay rule is set out in s 59 of the Act in the following terms:
59 The hearsay rule--exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
(3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.
Specific exceptions to the hearsay rule are as follows:
The Crown appeared to accept that the conversations were hearsay but relied on s 81 of the Act which is in the following terms:
81 Hearsay and opinion rules: exception for admissions and related representations
(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation:
(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and
(b) to which it is reasonably necessary to refer in order to understand the admission.
The term "admission" is defined in the dictionary to the Act in the following terms:
"admission" means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
(b) adverse to the person's interest in the outcome of the proceeding.
In respect of the first conversation in group one, the statements made by the accused, in my view, constitute an admission as to the deposit of the $200,000 to Elite Cranes on 7 May 2010. In light of the cross-examination of Gattellari, that admission is clearly adverse to the accused's interests. Along with the documentary evidence, it goes to establish (as Gattellari said at T557.1 and following) that the accused loaned a sum of money to Gatto.
In respect of the second conversation in group one, the statements made by the accused are capable of being construed as an acknowledgement that he had been informed that Gatto had, in fact, repaid $100,000 of that sum to Gattellari. Those representations are clearly adverse to the accused's interests, in circumstances where it was squarely put to Gattellari that the accused did not know of that transaction.
It follows, in my view, that those statements are admissible.
Accepting that the conversations in group one are admissible, it remains to consider the provisions of s 137, which are in the following terms:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
A number of observations should be made about the operation of s 137.
Firstly, the section mandates the exclusion of evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. The term "probative value" of evidence is defined in the dictionary as meaning:
"… the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
Secondly, in assessing the probative value of the evidence, a trial judge must take the evidence at its highest: IMM v R (2016) 257 CLR 300; [2016] HCA 14.
Thirdly, evidence is not unfairly prejudicial simply because it might be adverse, or even catastrophic, to an accused's case: Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37.
Fourthly, it is not necessary for the court to be satisfied that the use of the evidence will be prejudicial to the accused. It is sufficient if it is established that there is a danger that this will be the case: Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348; (2005) 224 ALR 317 at [16].
Finally, unfair prejudice may arise in a variety of circumstances. It will certainly arise if the evidence creates a danger that a jury will adopt an improper form of reasoning or if the evidence is such that the jury is likely to give it unfair or undue weight: R v Yates [2002] NSWCCA 520.
For the reasons that I have already given, and in light of the issues raised in cross-examination, the probative value of the evidence in the two conversations in group one is high. That evidence, along with those two calls in group two to which there was no objection, is capable of establishing that:
1. the accused did loan Gatto an amount of $300,000;
2. Gatto repaid $100,000 of that money;
3. contrary to what was expressly put to Gattellari, the accused had knowledge of the fact of that repayment; and
4. contrary to what was put to Gattellari, he applied no pressure to Gatto to make the payment.
All of those matters go to corroborate Gattellari's evidence in circumstances where his credit is a principal issue in this trial.
There may well be a danger of prejudice to the accused in the sense that the evidence, if admitted, would be prejudicial to his case but in my view, there is no danger of unfair prejudice in that event. That danger was said to arise, at least in part, from the fact that Gatto is said to be (putting it neutrally) a person of notoriety. I have already given directions to the jury in my opening remarks in this trial as to their obligation to decide the case on the evidence. That direction will be repeated, probably more than once, before this trial concludes. There will be no evidence before this Court of anything to do with Gatto, other than the transfers and financial dealings to which I have referred. In particular, there will be no evidence before this jury of any matter which is said to render him a person of notoriety or (as senior counsel put it) a person who is dubious.
I am also not satisfied that any prejudice at all, be it unfair or otherwise, arises from an inability on the part of senior counsel for the accused to cross-examine the officer through whom these calls may be played. Assuming the import of that submission is the fact that such officer could not be cross-examined about the content of the calls, that is perfectly correct. However that situation arises with almost any evidence of this nature, and gives rise to no danger of unfair prejudice.
For all of those reasons, I propose to allow the evidence of the two conversations in group one and to exclude the entirety of the conversations in group two, but for the two calls to which no objection was ultimately taken.
[2]
Amendments
01 May 2018 - Non-publication orders lifted.
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Decision last updated: 01 May 2018