R v Al Batat (No 11)

[2020] NSWSC 1115

Supreme Court

New South Wales

Medium Neutral Citation:	R v Al Batat & Ors (No 11) [2020] NSWSC 1115
Hearing dates:	5,6 August 2020
Date of orders:	21 August 2020
Decision date:	21 August 2020
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	(1) The evidence that Mr Fan organised a trip to China, and his concerns about taking that trip, is inadmissible.
Catchwords:	CRIMINAL LAW - evidence - consciousness of guilt - accused organised return trip to China - purpose of trip to bring daughter to Australia - where Prosectuor does not allege “flight” as consciousness of guilt - danger of unfair prejudice - danger of misuse of evidence - evidence excluded
Legislation Cited:	Evidence Act 1995 (NSW), s 137
Category:	Procedural and other rulings
Parties:	Regina Abdallah Hassan Al Batat Ying Cheng Luo Ian Fan Jaiyu Liu Jacob Blake Bayliss Nai An Li
Representation:	Counsel: P Hogan (Crown) 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) TS Law Firm (Al Batat) Voros Lawyers (Luo) Zahr & Partners (Fan) George Sten & Co (Liu) Ross Hill Lawyers (Bayliss) Younes & Espiner (Li)
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Publication restriction:	Not to be published until the conclusion of the trial

Judgment

1. The accused, Ian Fan (also known as “Michael”), is about to stand trial with five other men in relation to a number of criminal offences that were allegedly committed in January and February of 2017. Mr Fan is charged with one count of murder of Qin Wu, one count of attempted murder of Jun Jia (also known as “Xiao Jun”) and one count of supply methylamphetamine (or “Ice”) to another co-accused, Jacob Bayliss. Each of these offences are alleged to have occurred on 1 February 2017.

2. There is evidence available to the Prosecution that Mr Fan organised a trip to China in around the middle of June 2017. The evidence comes in various forms including:

1. Paragraph [51] of a statement of Tsui Wah Jacqueline Lei dated 12 October 2017: Exhibit A, Volume 2, Tab 21.

2. Three telephone intercepts of conversations between Mr Luo and a Leonard Rivers on 4, 5 and 6 June 2017: Exhibit A, Volume 3, T/I product numbers 278, 286 and 310.

3. A conversation between Mr Fan and Maggie Hsu on 21 May 2017 obtained through a listening device: Exhibit A, Volume 3.

3. The statement of Ms Lei says that “Michael wanted to go to China to get his daughter and bring her back to Sydney to send her to school, but he was worried about booking a plane ticket in case he got arrested”. In speaking about the trip with his girlfriend (Ms Hsu) Mr Fan also speaks about his daughter’s education and the pros and cons, and timing, of the proposed trip. A return ‘plane ticket was booked.

4. Accordingly, and appropriately, the prosecution does not allege that the trip was organised in an attempt to escape the jurisdiction or to avoid detection. There will be no suggestion that the trip could be used by the jury to demonstrate a consciousness of guilt by attempting to take flight. However, the prosecution suggests that the evidence demonstates a consciousness of guilt in another way. There is a evidence that Mr Fan did not take the trip because he was worried that travelling overseas would attract attention and that he may be arrested. So much can be seen from the passage of the statement of Ms Lei set out above. Ms Lei went on to say:

“I told him that he couldn’t hide forever and if he booked the ticket and went with no problems then it was ok. But if got arrested at the airport then he will just have to tell Police what he knows. I was trying to get Michael to stop hiding, Michael rarely left Croydon and spent most of his time inside. This conversation took place at Michael’s place in Lion St.”

5. Mr Fan’s objects to the admissibility of this evidence based on the argument that the probative value of the evidence is slight and is outweighed by the danger of unfair prejudice: Evidence Act 1995 (NSW), s 137. I accept this submission. There is a real risk of misuse of this evidence. For one thing, contrary to the express position of the Prosecutor, the jury may reason that Mr Fan was attempting to flee. For another, a person may be concerned about being stopped at the airport because they know or fear they are under suspicion or investigation, rather than because they know they are guilty. In spite of the clearest of directions, there is a real risk that the jury could misuse the evidence.

6. I am told there is a body of other evidence of post offence conduct by which the jury may infer a consciousness of guilty on Mr Fan’s part. This includes disposing of telephones and weapons, avoiding driving his own car, not leaving his house and so on. In the circumstances, a concern that making the trip to China may draw attention to himself does not add very much. While that does not impact on the probative value of the evidence, it does heighten the risk that the jury will improperly reason that he was attempting to take flight.

7. I consider that the probative value of the evidence is outweighed by the danger of unfair prejudice. In those circumstances, the evidence must be excluded under s 137 of the Evidence Act.

8. Accordingly, and for those reasons, I rule that the evidence that Mr Fan organised a trip to China, and his concerns about taking that trip, is inadmissible.

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Decision last updated: 25 November 2020