R v Al Batat (No 14) - [2020] NSWSC 1165

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 14) [2020] NSWSC 1165
Hearing dates: 20, 21, 24 August 2020
Date of orders: 31 August 2020
Decision date: 31 August 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
The listening device recorded on 4 May 2017 at 00:52:15 under warrant SD 17/0185 is inadmissible.

Catchwords:
CRIMINAL LAW – evidence - spirited and multifaceted objection - listening device recording - conversation in Mandarin - inconsistent translations - mysteries, infelicities and uncertainties - impact on probative value - carried v bring or brought - loaded expression - Urban Dictionary - leap of faith - unfair prejudice - where accused required to establish other criminal offence to explain recording - whether evidence might be confusing or misleading - evidence inadmissible

Legislation Cited:
Evidence Act 1995 (NSW), ss 135 and 137

Cases Cited:
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Bridgman (1980) 24 SASR 278
R v Burton [2013] NSWCCA 335; 237 A Crim R 238
R v Cook [2004] NSWCCA 52
R v Power (1996) 87 A Crim R 407
R v Taranto; R v Freeman [1999] NSWCCA 396

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: No publication until conclusion of trial

Judgment

This is the fourteenth, and last, of a number of judgments generated in the course of a pre-trial hearing that has spanned the last five weeks. The factual circumstances of the case are set out in some of the earlier judgments. Ian Fan (also known as “Michael”) is one of six men charged with a range of offences arising out of two shooting incidents that occurred, respectively, on 23 January and 1 February 2017. The target of both shootings was Jun Jia (or “Xiao Jun”). He is said to have failed to pay for some drugs and his suppliers took out a contract on his life. One of Mr Fan’s co-accused, Ying Cheng Luo (sometimes known as “Johnny”), allegedly accepted the contract and recruited Mr Fan and others to carry out the killing. In the course of the incident on 1 February 2017 a friend of Mr Jia’s, Mr Qin Wu, was killed.
On the prosecution’s case, Mr Fan joined the criminal enterprise after the shooting on 23 January 2017. The prosecution alleges that the 23 January shooting was organised by Mr Luo and carried out by Abdallah Al Batat. Chronologically, the first…

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 1165
Decision Date: 31 August 2020

CaseChat Overview and Summary

In the case of R v Al Batat (No 14), the respondent was charged with various drug-related offences under the Drug Misuse and Trafficking Act 1985 (Cth). The trial judge admitted a recording of a conversation between the respondent and another individual, which was made using a listening device. The conversation was in Mandarin and the translation provided was inconsistent. The respondent objected to the admissibility of the recording on multiple grounds, including the impact on probative value, the use of a loaded expression, and the potential for unfair prejudice.

The court was required to determine whether the recording was admissible in light of the respondent's objections. The court considered whether the evidence might be confusing or misleading, and whether the probative value of the evidence was outweighed by the danger of unfair prejudice. The court also considered the impact of the inconsistencies in the translation on the probative value of the evidence. The court held that the evidence was inadmissible due to the mysteries, infelicities and uncertainties surrounding the translation, which had the potential to be confusing or misleading.

The court found that the translation was inconsistent and that the probative value of the evidence was significantly diminished as a result. The court also found that the use of a loaded expression in the translation had the potential to unfairly prejudice the jury against the respondent. The court held that the evidence was inadmissible as it was more likely to mislead the jury than to assist them in reaching a just decision. The court did not find it necessary to consider whether the respondent was required to establish another criminal offence to explain the recording, as the evidence was already deemed inadmissible on other grounds.

Orders