R v Al Batat (No 1)

[2020] NSWSC 967

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Al Batat & Ors (No 1) [2020] NSWSC 967

Hearing dates:

20, 21, 22 July 2020

Date of orders:

29 July 2020

Decision date:

29 July 2020

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

Pseudonym, suppression and non-publication orders made.

Application to close the court refused.

One AVL order made.

See paragraph [36].

Catchwords:

CRIMINAL LAW – murder and attempted murder – drug deal gone wrong – a glitch or two – informant witnesses – suppression orders – application for court to be closed – whether orders necessary – statutory test – whether witnesses to give evidence by AVL – deficiencies in evidence – coronavirus – COVID-19 – restricted numbers in courtroom – special provisions in legislation

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Cases Cited:

Antov v Bokan(No 2) [2019] NSWCA 250

Attorney-General for NSW v Nationwide NewsPty Ltd (2007) 73 NSWLR 635

Commissioner of Taxation v Oswal (No 5) [2015] FCA 1504

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125

Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21

John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324

KN v R [2017] NSWCCA 249

Nationwide News Pty Limited v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97

New South Wales Commissioner of Police v Nationwide News Pty Ltd & Anor (2007) 70 NSWLR 643; [2007] NSWCA 366

R v Hutchison & Wilkinson [2018] NSWSC 1759

R v Kwok & Ors (2005) 64 NSWLR 335; [2005] NSWCCA 245

R v Qaumi & Ors(AVL) [2015] NSWSC 1711

R v Qaumi & Ors (No 13) [2016] NSWSC 337

R v Qaumi & Ors (No 15) (Non-publication order) [2016] NSWSC 318

R v Qaumi & Ors (No 50) [2016] NSWSC 1036

R v Qaumi & Ors (No 9) [2016] NSWSC 171

R v Qaumi & Qaumi (No 8) [2016] NSWSC 1730

Rinehart v Welker [2011] NSWCA 403

Scott v Scott [1913] AC 417

Category:

Procedural and other rulings

Parties:

Regina
Commissioner of Police
Abdallah Hassan Al Batat
Ying Cheng Luo
Ian Fan
Jaiyu Liu
Jacob Blake Bayliss
Nai An Li
Witness A
Witness B
[Redacted]

Representation:

Counsel:
P Hogan (Crown)
J Emmett (Commissioner of Police)
B Rigg SC (Al Batat)
R Webb (Luo)
T Quilter (Fan)
N Carroll (Liu)
A Norrie (Bayliss)
D Carroll (Li)

Solicitors:
Solicitor for the NSW DPP (Crown)
Crown Solicitors Office (Commissioner of Police)
TS Law Firm (Al Batat)
Voros Lawyers (Luo)
Zahr & Partners (Fan)
George Sten & Co (Liu)
Ross Hill Lawyers (Bayliss)
Younes & Espiner (Li)
Peninsula Law (Witness A)
Fusion Legal ([Redacted])

File Number(s):

2018/242293; 2018/214586 (Al Batat)
2017/170943; 2018/380808 (Luo)
2017/168582 (Fan)
2017/168476 (Liu)
2017/321618 (Bayliss)
2018/214894 (Li)

Publication restriction:

No publication until conclusion of trial

Judgment

1. This judgment relates to a series of applications made by the New South Wales Commissioner of Police and the Director of Public Prosecutions. The applications were made on the first days of a pre-trial hearing relating to the trials of six men charged with a number of counts on a joint indictment. The trial is due to commence on 3 August 2020 but the empanelment of a jury is likely to be delayed by a number of days by a series of pre-trial and evidentiary issues.

2. The charges relate to a series of offences that were allegedly committed in January and February 2017 and occurred in the context of a relatively large drug transaction in relation to which there appears to have been a glitch or two. To oversimplify things, a contract was taken out on the life of a man called Jun Jia (who was also known as Xiao Jun or Little Jun). The motive for the proposed murder was that Mr Jia failed to pay for some drugs. Two distinct attempts were made to shoot and kill Mr Jia. The second attempt resulted in the death, and alleged murder, of Qin Wu. It is unnecessary for the purpose of this judgment to set out the various charges alleged against the six accused men. On the prosecution case, some of the participants in the ongoing criminal enterprise were members of, or connected with, a Chinese criminal syndicate known as the Big Circle gang. The facts alleged demonstrate the ability of the accused to access firearms and a capacity and willingness to use them to harm and kill other human beings.

3. The orders sought by the applications now under consideration are calculated to ensure the safety of a number of prosecution witnesses. The orders include non-publication and suppression orders, orders that witnesses be referred to by pseudonyms, orders that three witnesses give evidence by Audio Visual Link (AVL) and orders that the courtroom be closed during the evidence of certain witnesses.

4. The principles to be applied in determining whether to make such orders are well-established although their application to the circumstances of a particular case can be difficult. The difficulty often arises because fundamental issues of great importance to the administration of justice pull in different directions: see for example John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at [17]-[18]. Those principles include the right of the accused to a fair trial, the principle of open justice, and the need for the Court to ensure the safety of witnesses lest witnesses in the future be reluctant to come forward.

5. The principles are derived from the common law and statute: Court Suppression and Non-publication Orders Act 2010 (NSW) (“Court Suppression Act”), Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (“AVL Act”); and see for example, Scott v Scott [1913] AC 417, R v Kwok & Ors (2005) 64 NSWLR 335; [2005] NSWCCA 245, New South Wales Commissioner of Police v Nationwide News Pty Ltd & Anor (2007) 70 NSWLR 643; [2007] NSWCA 366, Attorney-General for NSW v Nationwide NewsPty Ltd (2007) 73 NSWLR 635, Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21, Rinehart v Welker [2011] NSWCA 403, Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 and Nationwide News Pty Limited v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97.

6. I have considered these issues at some length in a not dissimilar case and one of the relevant decisions survived appellate review (while the others were not subject of an appeal):R v Qaumi & Ors(AVL) [2015] NSWSC 1711, R v Qaumi & Ors (No 9) [2016] NSWSC 171, R v Qaumi & Ors (No 13) [2016] NSWSC 337, R v Qaumi & Ors (No 50) [2016] NSWSC 1036, R v Qaumi & Qaumi (No 8) [2016] NSWSC 1730, and see R v Qaumi & Ors (No 15) (Non-publication order) [2016] NSWSC 318 upheld in Nationwide News v Qaumi (supra). Due to the number of complex issues to be ventilated on the pre-trial hearing and the proximity of the proposed trial date, it is not possible to deliver myself of another extensive judgment elucidating the principles to be applied. Further, counsel for the Commissioner provided a most helpful document (MFI 13) setting out in an admirably compendious manner the principles at play. The reader can assume that the principles articulated in the legislation and authorities referred to in this and the preceding paragraph, and those identified in MFI 13, have been applied in reaching the various decisions I have made.

7. The Prosecutor supports the orders sought by the Commissioner and the Commissioner supports the AVL orders sought by the Prosecutor. The accused have each taken a restrained and sensible approach. For the most part, the orders are not opposed. However, the closure of the Court is opposed and some of the accused take issue with two of the witnesses giving evidence by AVL. Counsel for the Director and the Commissioner approached the case in a balanced and appropriately diffident manner. I am grateful to the lawyers for all parties for their assistance.

8. The evidence on the application includes statements of two of the witnesses tendered by the Prosecutor. The Commissioner read an open affidavit and its annexures and a closed affidavit, tendered along with a confidential exhibit. The parties in the trial did not object to my considering the latter items although they are unaware of the contents of the closed affidavit and confidential exhibit. I have considered all of this material in reaching the following decisions. For obvious reasons, I cannot set out the information in the closed affidavit and exhibit.

9. Although two of the witnesses are referred to by letters (A and B) in the more recent material, their identities are known to some, if not all, of the accused men. I am told that their full names and other identifying details appeared in parts of the brief as originally served. Even so, each might be categorised as “informers” and their names and identities are not generally known. I am comfortably satisfied that it is necessary to make orders designed to protect their safety and that this includes taking necessary steps to ensure their identities are protected.

Application for three witnesses to give evidence by AVL

10. The Prosecutor seeks a direction under the AVL Act in relation to three witnesses (Witness A, Witness B and [Redacted]).

Witness A

11. The accused, Mr Bayliss, objects to an order that Witness A to give evidence by AVL. Accordingly, the Court “must not make the direction unless the [Prosecutor] satisfies the court that it is in the interests of the administration of justice for the court to do so”: AVL Act, s 5B(3).

12. The Prosecutor relies on Witness A’s somewhat dysfunctional family situation. This is set out in Witness A’s affidavit. Since her parents separated, Witness A has cared for her younger brother (who I will call Z). Z is now aged 12. They live some distance (about 1-2 hours’ drive) from Sydney. Z attends primary school and Witness A drives him to and from school as well as to social and extracurricular activities. The details are scanty. The evidence is that Witness A’s father died and very soon thereafter Witness A was sent to gaol for 14 months. At that time her mother (also Z’s mother) came home to look after the young boy. Now that Witness A has been released from prison her mother is seeking accommodation elsewhere. Again, little detail of this is provided.

13. There is no evidence that the mother is incapable of taking care of Z if Witness A attends Court to give evidence. There is no evidence as to when she is likely to move or that any such move cannot be delayed until after Witness A gives evidence.

14. There is evidence in the closed affidavit and exhibit that has some relevance to the AVL application. In particular I have taken into account the information appearing at pp 12-13 (especially paragraph 9) of the closed affidavit.

15. The Prosecutor has not established that it is in the interests of the administration of justice for Witness A to give evidence by AVL. The application for a direction that they do so will be refused.

Witness B

16. Witness B lives outside of the state of New South Wales. They have HIV/AIDS and his compromised T-cell immunity means he “is at an increased risk of death were he to acquire coronavirus (COVID 19)”. [1] His doctor has “advised against travelling to Sydney for the upcoming hearing in which he is a witness”. [2] It might be accepted that he is a person particularly susceptible to the COVID-19 virus.

    1. Ex VD1, p 242.

    2. Ibid.

17. None of the accused objected to Witness B giving evidence by AVL. However, some counsel raised concerns as to the supervision of the witness and sought assurances that the location and appearance of the AVL facility be sufficiently formal. Because no objection is taken, the question is whether one of the criteria in sub-s 5B(2) of the AVL Act is engaged. If any of the criteria are engaged, the Court must not make an order. The sub-section provides:

(2) The court must not make such a direction if—

(a) the necessary facilities are unavailable or cannot reasonably be made available, or

(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or

(c) the court is satisfied that the direction would be unfair to any party to the proceeding, or

(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.

18. None of those paragraphs apply to this case.

19. Further, the special provisions concerning the COVID-19 pandemic in s 22C of the AVL Act provide a further basis upon which the direction should be made. Sub-section (6) provides:

The court is to make a direction under this section only if it is in the interests of justice, having regard to the following--

(a) the public health risk posed by the COVID-19 pandemic,

(b) the efficient use of available judicial and administrative resources,

(c) any relevant matter raised by a party to the proceedings,

(d) any other matter that the court considers relevant.

20. For these reasons, I will make a direction that Witness B may give evidence by AVL.

[Redacted]

21. [Redacted] is currently an inmate in a New South Wales correctional centre. She made a statement saying (amongst other things) that after she attended a conference with the prosecutors she was approached by a group of inmates who called her “a dog” and made threats to bash her. That conference was held by AVL. She is concerned that if she attends Court the change in her routine will be obvious to other inmates who may speculate that she is giving evidence. While the same might be said if she gives evidence in the AVL suite – which may explain the incident after the conference – the change in routine would be greater if she gives evidence in Court. She has heard from friends at another (I think immigration) facility that there is speculation or rumour mongering that she is a prosecution witness.

22. The Prosecution also points to the potential health risk, concerning the COVID-19 pandemic, involved in bringing an inmate into a courtroom where there are between 40-50 people most of whom live in the community. He says this is relevant to the application of both s 5B and s 22C of the AVL Act. It is well known that gaols are particularly vulnerable to the rapid spread of the disease, although there have been no confirmed cases in inmates in NSW prisons. This is an important matter and one that I have taken into account.

23. The accused, Mr Liu, objects to a direction permitting this witness to give evidence via AVL. He points to the importance of the evidence of this witness and the likelihood that credibility will be a significant issue: Antov v Bokan(No 2) [2019] NSWCA 250 at [42] and [50]; cf the decision in KN v R [2017] NSWCCA 249 at [66].

24. If the decisions in Antov and KN are in conflict, I would follow the approach adopted by the Court of Appeal in Antov last year. That is, the fact that a witness is important and their evidence and credibility is in contest is relevant to a consideration of the interests of justice pursuant to ss 5B and 22C of the AVL Act. This also accords with the approach of the Federal Court to such applications under its relevant legislation: Commissioner of Taxation v Oswal(No 5) [2015] FCA 1504. I am grateful to the Prosecutor and counsel for Mr Bayliss for bringing these authorities to my attention.

25. While I accept the concerns raised by the Prosecutor in relation to keeping COVID-19 out of the prison system, in the absence of any evidence that the relevant authorities are concerned with bringing [redacted] to Court, those concerns cannot carry the day. I would be open to hearing further evidence or to reconsider the matter if the current state of alert or lockdown status changes before [Redacted] gives evidence. This was a possibility conceded by counsel for Mr Liu.

26. I am also conscious of the wishes of the witness and her concern as to the possible implications of a change in her routine. However, the incident she described in her statement occurred after an AVL conference and I am not persuaded that the additional change in her routine increases the risk she is concerned about. I would expect those administering the prison to be conscious of, and guard against, any risk associated with a change in her movement.

27. As the evidence stands, I am not satisfied that it is in the interests of justice (or, if there is a difference, in the interests of the administration of justice) for [Redacted] to give evidence by AVL. The application for a direction to that effect is refused.

Orders designed to prevent wider disclosure of the identity of Witnesses A and B

28. As I have said, a number of the accused know the identity of Witness A and Witness B and their names were referred to in the prosecution brief. Even so, the accused agree the Court should make orders designed to ensure that the identity of the two witnesses is not widely publicised or known. I accept that concession and note that orders are often made to protect the safety of informant witnesses. This is important both in the individual case but also to ensure that future witnesses are not discouraged from co-operating with law enforcement and prosecuting authorities.

29. The question is what orders are “necessary” to serve that purpose: cf Court Suppression Act, s 8.

30. I accept that pseudonym and suppression orders are necessary:

• To prevent prejudice to the proper administration of justice: s 8(1)(a).

• To protect the safety of the witness: s 8(1)(c).

• Because the public interest in making the orders outweighs the public interest in open justice: s 8(1)(e).

31. These orders will suppress any dissemination of information that might lead to the identification of witnesses A and B. There will also be some limitation on the eliciting of evidence that may disclose the true identity of these witnesses. The parties essentially agreed on the form of order I should make in this regard.

32. As to the pseudonyms to be used, the parties agree that actual names should be provided rather than referring to people by letters of the alphabet (lest this creates prejudice). I proposed to leave the choice of names to the parties due to the unhappy history I have in choosing pseudonyms: see R v Hutchison & Wilkinson [2018] NSWSC 1759 at [1]. However, the parties have not suggested any names to this point and I propose that Witness A will be referred to as “Martina Sellers” and Witness B as “Leonard Rivers”.

[Redacted]

33. The Commissioner also seeks non-publication orders in relation to the witness [Redacted] and her son [Redacted]. I am satisfied that the orders sought are necessary to protect the safety of the witness (s 8(1)(c)) and because the public interest in making the orders outweighs the public interest in open justice (s 8(1)(e)). Counsel for all six accused did not contest the making of these orders. The evidence tendered by the Commissioner amply justifies the making of the orders sought.

Closure of the Court

34. The Commissioner sought an order that the Court be closed during the evidence of witnesses A and B. The basis of this application is that it reduces the possibility that the two witnesses will be identified by people sitting in the public gallery. The closure of the Court is an extreme step and represents a significant infringement of the principle of open justice. There are cases where such orders are necessary; for example, where matters of national security are discussed or where there is some specific and real threat to the safety of a witness. However, the evidence in the present case, including the evidence in the closed affidavit and exhibit, are insufficient to establish that orders closing the Court are necessary to protect Witness A or Witness B.

35. Due to the COVID-19 pandemic, and the limitation on the number of people who will be in the courtroom during the trial, it is unlikely that any member of the public will be able to sit in the public gallery. It may be that a video link to a court room nearby will be arranged to create a “virtual public gallery”. It will also be possible for journalists and others to dial-in to the courtroom remotely. However, as the system is currently operating, the witness box is not able to be viewed from the remote facility. In other words, those not actually in the courtroom will be able to hear, but not see, the witnesses. This is a practical consideration that confirms my conclusion that an order closing the Court is not necessary. However, even if the public were able to see the witness box, I am not satisfied on the evidence as it stands that closure of the Court is necessary to protect the witnesses or for any of the other reasons referred to in s 8 of the Court Suppression Act.

Orders and directions

36. Accordingly, I make the following orders and directions:

Applications for orders for witness to give evidence by audio visual link

1. The application for a direction that Witness A give evidence by audio visual link (AVL) is refused.

2. I direct that Witness B is to give evidence by AVL from a place outside of the courtroom.

3. The application for a direction that [Redacted] give evidence by audio visual link (AVL) is refused.

4. The legal representatives of the Commissioner and officers of the New South Wales Police Force have liberty to make arrangements with the Court officers and Sheriff's officers regarding the operation of any audio visual link in relation to any of the witnesses in these proceedings who have been given to a direction pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).

Orders relating to Witness A and Witness B

5. The person currently referred to as “Witness A” will be referred to by the pseudonym “Martina Sellers” during the trial and any related hearing including pre-trial hearings and sentencing hearing (if any) and in any judgments arising out of those proceedings.

6. The person currently referred to as “Witness B” will be referred to by the pseudonym “Leonard Rivers” during the trial and any related hearing including pre-trial hearings and sentencing hearing (if any) and in any judgments arising out of those proceedings.

7. The true identity of Witness A and Witness B, together with any evidence, submission, discussion, document or information that might facilitate the identification of their identity is suppressed, including any document recording the name of Witness A or Witness B.

8. Any visual or other description or depiction of the physical appearance or other identifying feature of Witness A and Witness B is suppressed.

9. There is to be no examination, cross-examination or re-examination of Witness A or Witness B as to their identity that would, if answered, elicit evidence disclosing:

1. The real identity of Witness A or Witness B;

2. The current whereabouts of Witness A or Witness B; and

3. Any other information that would otherwise allow Witness A or Witness B to be located or identified.

10. Any evidence of Witness A and Witness B that tends to disclose one of the matters referred to in order 9 (a) – (c) is suppressed.

Orders relating to other witnesses and people

11. There is to be a non-publication order over the names of [Redacted] and [Redacted] (also known as [Redacted]) and any evidence, submission, discussion, document or information that might facilitate the disclosure of their identity.

12. There is to be no examination, cross-examination or re-examination of [Redacted] that would, if answered, elicit evidence disclosing or tending to disclose the current whereabouts of [Redacted] (also known as [Redacted]) or any other information that would otherwise allow him to be located.

Orders relating to closure of the Court

13. The applications to close the Court for the evidence of Witness A, Witness B and [Redacted], during the trial and during the course of any other proceedings conducted in connection with the trial, and during any sentencing proceedings arising from these proceedings, are refused.

Ancillary orders

14. The suppression and non-publication orders are made on the grounds set out in s 8(1)(a), (c) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW).

15. Pursuant to s 11 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the suppression and non-publication orders are to apply throughout the Commonwealth of Australia.

16. Pursuant to s 12 of the Court Suppression and Non-Publication Orders Act 2010 (NSW):

1. the suppression orders in respect of Witness A are to remain in force until further order, or until the death of Witness A and any parent, spouse or child of Witness A.

2. the suppression orders in respect of Witness B are to remain in force until further order, or until the death of Witness B and any parent, spouse or child of Witness B.

3. the non-publication orders in respect of [Redacted] and [Redacted] (otherwise known as [Redacted]) are to remain in force until further order, or until the death of each of [Redacted] and [Redacted].

17. In the absence of any further order, there is to be no access to the following documents on the Court file, except by the legal representatives of the Crown, each of the accused and the Commissioner:

1. Any statements made by or on behalf of Witness A, Witness B, [Redacted] or [Redacted];

2. Any documents referring to any of Witness A, Witness B, [Redacted] or [Redacted] which would, if disclosed, reveal or tend to reveal their true identity; and

3. The open affidavit of Stuart Smith sworn 15 July 2020.

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Endnotes

Amendments

01 December 2020 - Judgment redacted in accordance with non-publication order.

Decision last updated: 01 December 2020