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R v Al Batat (No 1)

R v Al Batat (No 1)

Case [2020] NSWSC 967 29 July 2020

Criminal Liability

Evidence Law

Admissibility of Evidence

Special Provisions

Criminal Law

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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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Al Batat (No 1)

Details

AGLC: R v Al Batat (No 1) [2020] NSWSC 967
Case: [2020] NSWSC 967
Decision Date: 29 July 2020

CaseChat Overview and Summary

The case of R v Al Batat (No 1) was heard in the Supreme Court of Victoria. The accused, Al Batat, faced charges of murder and attempted murder in connection with a drug deal that turned violent. The case involved multiple informant witnesses who were integral to the prosecution's case, and there were significant issues regarding the security and privacy of these witnesses. The defence sought suppression orders and an application for the court to be closed to the public, citing the need to protect the witnesses from potential retribution. The court was tasked with determining whether such orders were necessary and appropriate under the circumstances.

The legal issues before the court included the necessity and proportionality of suppression orders and the application to close the court to the public. The court had to assess the risk to the witnesses and the public interest in open justice. Additionally, the court considered whether the witnesses should testify via audio-visual link (AVL) due to the deficiencies in the evidence and the ongoing COVID-19 pandemic. The court also needed to balance the statutory requirements for witness protection against the principles of open justice and the public's right to observe court proceedings.

In delivering its judgment, the court found that the suppression orders were necessary to protect the informant witnesses from potential harm. The court concluded that the risk to the witnesses was significant and warranted the imposition of such orders. Regarding the application to close the court to the public, the court determined that the public interest in open justice outweighed the need to protect the witnesses in this instance. The court also ruled that the witnesses should give evidence via AVL due to the deficiencies in the evidence and the constraints imposed by COVID-19. The court's decision was based on a careful weighing of the statutory obligations and the public interest in maintaining an open court system.

The final orders included the granting of suppression orders to protect the informant witnesses and the decision to allow the witnesses to testify via AVL. The court did not close the proceedings to the public, finding that the open justice principle was paramount in this case. The court's decision underscores the delicate balance that must be struck between protecting witnesses and upholding the principles of open justice in criminal proceedings.

Orders