R v Al Batat (No 12) - [2020] NSWSC 1129

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 12) [2020] NSWSC 1129
Hearing dates: 20 and 24 August 2020
Date of orders: 26 August 2020
Decision date: 26 August 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1)   The tendency evidence in paragraph [42] of Ms Sellers’ Statement of 29 June 2017 is not admissible.
(2)   The evidence of the text message sent to Bradley Pattenden on 8 February 2017 is not admissible.
(3)   The Prosecution will not be permitted to conduct the case on the basis that Mr Bayliss had a tendency to exchange firearms for other items.
(4)   The evidence in Question 929 of the electronically recorded interview of Mr Bayliss on 24 October 2017 is not admissible.
(5)   The Prosecution will be permitted to conduct the case on the basis that Mr Bayliss had a tendency to possess firearms at the relevant time.
(6)   The evidence of Constable Kate McGrath concerning Mr Bayliss’s possession of three firearms on 14 February 2017 is admissible, subject to appropriate editing.
(7)   The evidence in the electronically recorded interview of Mr Bayliss dated 24 October 2017 concerning Mr Bayliss’s love of guns and his admissions that he possessed and accumulated firearms is admissible.

Catchwords:
CRIMINAL LAW – evidence - “I love me guns” - tendency evidence - where accused charged with supplying firearms - whether evidence of a love of guns has significant probative value as tendency evidence - possession of three firearms two weeks after alleged offences - evidence admissible
CRIMINAL LAW - evidence – “cute miniature cowboy gun” - tendency evidence - where informant witness to substantive events also gives tendency evidence - assessment of probative value - evidence not admissible
CRIMINAL LAW - evidence - tendency evidence - single text messages proposing trade of guns for debt or drugs - probative value - potential prejudice - evidence not admissible

Legislation Cited:
Evidence Act 1995 (NSW), ss 97 and 101
Criminal Procedure Act 1986 (NSW), s 143

Cases Cited:
BRC v R [2020] NSWCCA 176
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
R v Davidson (No 1) [2019] NSWSC 980
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045
R v Al Batat & Ors (No 1) [2020] NSWSC 967
R v Al Batat & Ors (No 3) [2020] NSWSC 1061
Vagg v R [2020] NSWCCA 134

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…

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.

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Details

Case: [2020] NSWSC 1129
Decision Date: 26 August 2020

CaseChat Overview and Summary

The case of R v Al Batat (No 12) involved the appellant who was charged with supplying firearms. The central issue before the court was whether certain pieces of evidence, including expressions of a love for guns, possession of firearms shortly after the alleged offences, and text messages proposing trades involving guns, were admissible as tendency evidence. The court had to determine if these pieces of evidence had sufficient probative value to outweigh any potential prejudice to the accused.

The legal issues revolved around the admissibility of the evidence under the common law principles governing tendency evidence. The court had to assess whether the evidence of the accused’s love for guns, his possession of firearms shortly after the alleged offences, and the text messages proposing trades involving guns had significant probative value. The court also had to consider whether the probative value of these pieces of evidence outweighed any potential prejudice they might cause to the accused.

The court concluded that the evidence of the accused's love for guns and his possession of firearms two weeks after the alleged offences had significant probative value, and therefore, it was admissible. However, the court ruled that the evidence of a "cute miniature cowboy gun" and the single text messages proposing trades involving guns did not have sufficient probative value to outweigh the potential prejudice, and thus were not admissible. The court carefully weighed the probative value of each piece of evidence against the risk of unfair prejudice to the accused, applying the principles established in relevant case law.

The final orders of the court were that certain pieces of evidence were admissible as tendency evidence, while others were excluded due to their lack of sufficient probative value. The court's decision clarified the threshold for admissibility of tendency evidence in cases involving firearms offences and provided guidance on the assessment of probative value and potential prejudice.

Orders