Answer: No, I certainly did not. I certainly did not. He always had hold of the gun.
In Gatto’s version of events he then stepped out of the corridor and spoke to the owner of the restaurant.
Question: Do you remember having a discussion with Michael at that point?
Answer: I do, yes. As we met each other, he said, ‘What happened?’ And I said, ‘He just tried to fuckin’ kill me like he killed Graham.’ I said, ‘Am I all right?’ And at that point I put the gun in my pants, and I said, ‘Is my ear all right, because I think he hit me or something?’ And Michael said, ‘It looks a bit red.’ And then we stepped back into the kitchen. Because I was so fat, I had a big stomach; the gun nearly fell out anyway. I grabbed it and I gave it to him, and I said, ‘You’d better take that.’ I gave him the gun and he went and wrapped it in a towel or something; I don’t know what he done with it; and put it on the bench in the kitchen area. I thought I was actually shot, you know, I thought the bullet hit me … After that happened, I walked out of the restaurant, and as I walked over to the high level, where the boys … they were all standing up, they didn’t know what was going on … Michael Choucair walked out of the kitchen at that point and he said, ‘What’ll I do?’ And I said, ‘You’d better ring the police and ring an ambulance.’ And then I turned around and grabbed my phone off Ronnie, and I said, ‘You wouldn’t believe what happened. He just tried to fuckin’ kill me, this bloke. He just tried to kill me like he killed … like he tried to kill Graham’, or something like that. ‘He just tried to kill me like he said he killed Graham’, words to that effect.
He said that when the police arrived he told them: ‘He pulled a gun out … he pulled out a gun and he tried to shoot me and he finished second best.’
Question: After the shooting, how did you feel?
Answer: Just didn’t know where I was. I was in a state of shock. I mean, I couldn’t believe that I was still alive, you know. It was just my life flashed before me. The whole world was just … it was all over, you know. I thought I was a dead duck.
He explained that he had a gun in his pocket but did not have a chance to grab it when Veniamin launched his sudden attack.
I would’ve been a statistic if I’d done that. If I’d tried to pull it out of my pocket, he would’ve shot me straight in the head. I mean, I never had time, it was just that quick. I never had a chance to go for my pocket. If I hadn’t have lunged at him and grabbed him, his arm, mate, I wouldn’t be here today to tell the story. I’d be a statistic.
Fearing that he would be charged with having an unlicensed gun, Gatto gave his .25 handgun to his good friend Brian Finn saying:
Do me a favour, get rid of that.’ And I gave him the gun, and he put it in his pocket, which is a .25 that I had on me, and he just left … I used to carry it in my right pocket from time to time, the pocket of my trousers.
The final three questions by his lawyer were designed to leave an impression on the jury and to cut through the mass of conflicting expert testimony of the events of more than a year earlier.
Mr Gatto, you’ve been charged with the murder of Andrew Veniamin?
Answer: That’s right.
Question: Did you murder Andrew Veniamin?
Answer: Christ, no way known. What I done is stopped him from murdering me.
Question: How did Andrew Veniamin die?
Answer: He died because he just pulled a gun at me. He went ballistic. He tried to kill me and I stopped him from doing that and he got shot rather than me. Thank God he did.
At no stage did Gatto make the mistake of trying to disguise his mistrust of Veniamin. As he was to say elsewhere:
If it was anyone else in my position, they’d get a key to the city. It’s just unfortunate that it’s me.
This frankness made it all the harder for the prosecution to undermine him. There was not much left to expose. When it was the turn of prosecutor Geoff Horgan, SC, to try to bring down the old heavyweight, Gatto would stand in the box, big fists grasping the wooden rail on either side of the elevated box, pushing his silver-framed glasses back to the top of the bridge of his nose. Refusing the traditional yes-no answers, he would take any opportunity to remind the jury of the lack of forensic evidence or what he believed were the perceived weaknesses in the prosecution case. For a slugger, he was boxing clever.
Asked why he wanted to meet Veniamin in the Carlton restaurant, he said:
Just to see his demeanour. Just to get my finger on the pulse with him, just to keep my finger on the pulse with him … there were all these rumours going around that I was going to be next and there was a possibility that he was going to do it. That’s the only reason.
He said he believed Veniamin had killed four or five times before and Horgan asked:
But you’re happy to have an acquaintanceship with such a man?
Answer: That’s right … Let me say this, Mr Horgan, I’ve got hundreds of friends and … or hundreds of acquaintances. I’m very well known, and he just fitted that category. I mean, I don’t like to burn bridges; I like to establish networks of people. It always comes …
Question: What networks would you establish with Andrew Veniamin, this man you believed to be a killer multiple times?
Answer: Well, it comes in handy with the work that I do.
Question: Does it?
Answer: It might be a building-type scenario in the western suburbs and he might know someone that’s there. He runs that part of town. I mean, it’s always … you know, it’s always handy to sort of … I like to know as many people as I can.
Horgan then wanted Gatto to say he hated Veniamin because he believed the hit man had killed his best friend, ‘The Munster’. He wanted to establish a motive to back the claim that Gatto lured his enemy to the restaurant, took him to the corridor where there were with no witnesses and murdered him before setting up the self-defence scenario.
Question: After Graham Kinniburgh was murdered you were deeply affected by that, weren’t you?
Answer: I was.
Question: Because he was a man, I think you told us yesterday, you loved?
Answer: Yes, I did, I still do.
Question: Did you believe that Andrew Veniamin was responsible for that?
Answer: I did at the time.
Question: Did you come to believe that he’d done it?
Answer: Come to believe, yes, within days. I did believe that.
Question: Believed that he was the murderer?
Answer: Yes.
Question: Of your dear, dear friend?
Answer: That’s exactly right.
Question: And because you believed it, did you have a very strong animosity towards Andrew Veniamin?
Answer: Yes, probably you could say that.
Question: You had that same animosity up until the time of his death?
Answer: No, I don’t agree.
Question: What’s wrong with that?
Answer: Well, because we had two or three meetings where he emphatically told me that it wasn’t him … And on two or three or four occasions I was satisfied that it wasn’t him and had an open mind about it.
Question: You would loathe him?
Answer: I wouldn’t have been happy with him, no.
Question: Let’s not beat around the bush … You would have loathed him?
Answer: Yes, that’s right.
Question: So, let’s just clarify the situation. As at 23 March 2004 you did loathe Andrew Veniamin or not?
Answer: I wasn’t sure. I wasn’t sure.
Question: What weren’t you sure about, whether you loathed (him) or whether he killed Kinniburgh?
Answer: Well, I wasn’t sure whether he killed Graham, I wasn’t sure, but as far away … as far as the way I felt about him, yes, it was certainly changed, yes.
Horgan also wanted the jury to see that the accused man was more likely to try to take justice into his own hands than leave the investigation to police, even though Gatto’s own life was in d
anger. According to Gatto, taskforce detectives had asked him about the series of unsolved murders and added, ‘Mick, be careful, you could be next’ — a statement police denied.
I said, ‘I don’t know anything and if I did I wouldn’t tell you anyway … I’m not an informer. I’m not a police informer. I pride myself on minding my own business.’
Question: You mean you don’t believe that if a brutal murder has occurred where someone has been executed, and you know something about it, and you know the person responsible who’s still running around the community executing people, you wouldn’t tell the police about it?
Answer: Well, you never get into trouble minding your own business.
In response to a series of questions Gatto replied:
You keep twisting it and changing it … I’ve told you that when I lunged at him I grabbed at his arm and his hand, but, you know, it happened that quick, the gun went off in my face. I mean, you know, I wouldn’t wish upon anyone what happened to me, and I mean, to try and remember for the last fourteen months, I wake up in a cold sweat every night of the week reliving exactly what took place that day. It goes through my head every night of the week. I wake up in a cold sweat thinking about it … I was squeezing his hand. I was trying to kill him. He was trying to kill me, I was trying to kill him.
Question: So you’ve trapped his hand on the gun, so that you’re capable of squeezing his finger around the gun so that he kills himself?
Answer: That’s right, that’s exactly how it happened.
Question: You’ve got control of his hand which was holding the gun?
Answer: That’s right, I’m squeezing his hand, squeezing his fingers to press the trigger.
Question: So he will press the trigger?
Answer: That’s right.
Question: And your intention was to squeeze his hand till the gun went off, causing him to shoot himself. Was that your intention?
Answer: Of course it was. There’s no dispute about that. I’m very happy about it, to be honest.
JUSTICE ‘Fabulous Phil’ Cummins shows two signs of his personality in the big criminal trials. A judge who does not wear the traditional wig and probably the only one in Australia who wears a sparkling stud in his left earlobe, he imposes himself on trials — much to the chagrin of various defence lawyers. Some judges tend to watch passively, allowing the prosecution and defence to battle in front of the bench — speaking only when asked for a legal ruling. Their turn comes when they address the jury at the completion of the evidence. But Phil Cummins is much more a participant, through pre-trial arguments, cross-examination and closing arguments. An experienced trial advocate before he moved to the bench, he reminds a watcher of a footballer turned coach who would rather still be getting a kick than making the moves from the sidelines.
When the jury is out of the room, Cummins will question lawyers on the direction they are taking, warn them when he disagrees with their tactics and occasionally rebuke them when he feels the need. Some experienced barristers think they are kept on too tight a leash in a Cummins trial.
But when the jury enters his court, the judge’s manner changes. He is both charming and protective of the twelve strangers who make up the jury, and over the weeks or months that trials can run, he develops a bond with those selected to represent the community. He appears to try to build a protective bubble for the jury, repeatedly reinforcing that only they have the common sense to deal with the issues at hand. His well-practised intimacy with strangers appears to be designed to remove the intimidation of the court setting. It is as if he and the jury have stumbled upon some bizarre circus act being performed in front of them by lawyers and witnesses. He sometimes appears to be a tour guide showing visitors the interesting spots in what can often be a dull landscape.
One of the most entertaining distractions in a high-profile trial is jury watching. Lawyers, police and neutral observers gossip about the jury members — how they sit, how they react, how they look at the accused, and how they relate to each other. Like veteran track watchers studying horses before they race, they look for the tiniest sign that could help them back a winner. But juries, like horses, can’t talk so it always ends as guesswork. During the long court days some jury members are obviously bored — only half listening to hours of seemingly irrelevant evidence.
Like students in a classroom, some only truly switch on at the last minute as if preparing for their final exams. In court, the final swotting is listening to the judge’s summary. While the judge is supposed to sum up the law, many jury members look for messages in the judge’s charge to see which way they should jump.
Like contestants on Who Wants To Be A Millionaire? they hope there is a message in the delivery that can guide them to the right answer. The judge stresses that he will not and cannot do their job. He will tell them the law, but they must decide the facts.
On 8 June 2005, after a trial lasting nearly seven weeks — short by modern standards — Justice Cummins finally cut to the chase. He spoke to the jury for more than two days — reviewing the evidence and explaining the law. But it was early on day one of the summary that he explained the basis of the case, pure and simple. Who pulled the gun in the corridor? If it were Veniamin he copped his right whack and it was self-defence. If it were Gatto, it was murder:
In your decision-making, ladies and gentlemen, you must put aside sympathy and you must put aside prejudice and decide the case solely on the evidence led here in court. Put aside completely any previous publicity. You must not decide the case on prejudice or on extraneous considerations or on sympathy but solely on the evidence led here in front of you in this court, just as you have sworn or affirmed to do.
Proceed in your decision-making, ladies and gentlemen, as you would expect and wish a judge to proceed, because each of you now is a judge, fairly, calmly, analytically and solely on the evidence. … In this case, ladies and gentlemen, the accused Mr Gatto, gave evidence in front of you and was cross-examined. Mr Gatto could have remained silent throughout this case and not come forward to give evidence and be cross-examined, and that is because, as I will come to in a moment, an accused person has no burden to prove anything in a criminal trial. The person who has the burden to prove in a criminal trial is the prosecution because the prosecution has brought the charge. So when you are assessing the evidence of Mr Gatto, you apply the same principles as you apply to other witnesses in the case: Is the witness telling the truth or lying? And is the witness accurate and reliable or not? But with Mr Gatto, the accused, you also are entitled to take into account in his favour that he gave evidence in front of you when he had no obligation to do so.
To be convicted of murder, the accused has to kill another person. There is no dispute about that in this case. The accused Mr Gatto says he did kill Andrew Veniamin by forcing Andrew Veniamin’s finger to pull the trigger, forced by Mr Gatto by squeezing Veniamin’s hand and that killed Mr Veniamin. There is no dispute about element number one, ladies and gentlemen. … The issue here is: Who had the .38? The prosecution says Mr Gatto had the .38, he took the deceased out the back, Gatto produced the .38 and shot the deceased repeatedly with it. That is the prosecution case. The defence says the .38 was Veniamin’s. Veniamin arrived at La Porcella with the .38 hidden, and when they both went out the back, Veniamin produced the .38 and was going to shoot Mr Gatto with it. So that is the issue in a nutshell, ladies and gentlemen. No-one has suggested in this case, ladies and gentlemen, that if Veniamin had the gun and Veniamin pulled the gun on Gatto, threatening to kill him, that Gatto was not entitled to act in self-defence. No-one suggested that. If Veniamin had the gun and Veniamin pulled the gun on Gatto and threatened him, you must acquit Mr Gatto of murder. So the issue is: Who had and pulled the gun?
The accused does not have to prove he acted in self-defence. The prosecution has to prove he did not act in self-defence at the time he killed the deceased and must so prove beyond reasonable doubt. That is the burden of proof, ladies and gentlemen. Des
pite the use of the words ‘self-defence’, the accused does not have to prove he acted in self-defence. The prosecution has to prove, and prove beyond reasonable doubt, that the accused did not act in self-defence.
So, what does that all come down to, ladies and gentlemen? Who had the .38? And that is what this case has been about, ladies and gentlemen. For a conviction of murder, the prosecution must prove beyond reasonable doubt that the accused Mr Gatto produced the .38 at the restaurant and shot the deceased with it. … So, that is what it all comes down to ladies and gentlemen. Has the prosecution proved beyond reasonable doubt that Mr Gatto had the .38? If the prosecution has proved beyond reasonable doubt that Mr Gatto had the .38 you would convict Mr Gatto of murder. If the prosecution has failed to prove that beyond reasonable doubt you must acquit him of murder.
The jury returned with a verdict on 15 June 2005, after less than 24 hours. Gatto stood in the dock, plucking at a thread that had come away from his elegant grey tie in the long minutes before the jury members returned to decide his future. His wife and daughter were in the public gallery behind him. He told them repeatedly that he loved them. He spoke calmly, quietly, assuring them everything would be all right. He and his wife, a pleasant-looking and charming woman, spoke warmly. He appeared to be more concerned for them than for himself. He made an obvious effort to control his emotions, not wanting to increase their concerns. He talked to his daughter gently about domestic matters. She said despite her father’s absence some things hadn’t changed — her room at home was still messy. He laughed.
When his son arrived, nervous and distressed, Gatto smiled again, telling him everything would work out fine, trying to remove the building tension. It was hard not to be impressed. If a measure of a man is how he deals with life-defining moments, there was no myth about Gatto that day. He told them that the most important words he would ever hear would be from the jury. The foreman would say either one word or two — ‘Guilty’ or ‘Not Guilty’. One of the authors who happened to be sitting with the Gatto family speculated that it would be two. Gatto responded, ‘I hope you’re right.’ To his family downstairs and his friends upstairs he repeatedly gave a Roman-like salute, right clenched fist across the heart, then fingers to the lips.
The Gangland War Page 26
