R v Al Batat (No 15) - [2020] NSWSC 1227

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 15) [2020] NSWSC 1227
Hearing dates: 9 September 2020
Date of orders: 10 September 2020
Decision date: 10 September 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
The application under s 32 of the Evidence Act 1995 (NSW) is refused.

Catchwords:
EVIDENCE - evidence of admission in WeChat exchange - evidence admissible against one of six accused - application to refresh memory from statement - where statement made 27 months after “chat” - impressionistic recall of conversation - relevant considerations - leave to put document in hands of witness refused
EVIDENCE - words and phrases - “fresh in the memory” - statutory construction - whether phrase should be construed wherever it appears in statute - where one section amended to define phrase - where section under consideration not amended

Legislation Cited:
Evidence Act 1995 (NSW), ss 32, 66

Cases Cited:
Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
R v Al Batat & Ors (No 8) [2020] NSWSC 1095
R v Al Batat & Ors (No 10) [2020] NSWSC 1107
R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105
Roth v The Queen [2014] VSCA 242

Texts Cited:
Stephen Odgers, “Uniform Evidence Law” (15th Edition, Lawbook Co, 2020)

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): 2018/214586 (Al Batat)
2017/170943 (Luo)
2017/168582 (Fan)
2017/168476 (Liu)
2017/321618 (Bayliss)
2018/214894 (Li)
Publication restriction: No publication until conclusion of trial

Judgment

Yesterday, the Prosecutor sought leave under s 32 of the Evidence Act 1995 (NSW) to have the current witness, Ms Wai Li, refresh her memory from a police statement she made on 1 May 2019. Three of the six accused opposed the grant of leave. The evidence subject of the s 32 application concerns a “conversation” between Ms Li and one of the accused, Mr Luo, which was conducted over a medium known as WeChat the day after the alleged murder on 1 February 2017. That is, the alleged WeChat messages were sent and received on 2 February 2017, more than two years before Ms Li’s statement was made. The evidence was considered in two separate judgments in the course of the pre-trial hearing: R v Al Batat & Ors (No 8) [2020] NSWSC 1095 and R v Al Batat & Ors (No 10) [2020] NSWSC 1107. In the first of those judgments I ruled the evidence was admissible against Mr Luo and in the second I ruled that it was inadmissible against Mr Liu. In…

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 1227
Decision Date: 10 September 2020

CaseChat Overview and Summary

The case of R v Al Batat (No 15) involved a dispute between the Crown and six accused individuals. The primary issue was the admissibility of evidence derived from a WeChat exchange, specifically an admission made by one of the accused. The application to allow a statement to refresh the memory of a witness was central to the case, with the statement having been made 27 months after the conversation. The court had to consider the relevance of the statement given the time lapse and the witness's impressionistic recall of the conversation.

The legal issues centred on the admissibility of the WeChat evidence and the interpretation of the phrase "fresh in the memory" in the context of statutory provisions. The court had to decide whether the phrase should be construed uniformly throughout the statute, even where not all relevant sections had been amended. Specifically, the court needed to determine if the phrase should be interpreted consistently given that only one section had been amended to define it.

The court ruled that the evidence from the WeChat exchange was admissible against one of the accused, despite the 27-month gap between the conversation and the statement. The court found that the witness's recollection, though impressionistic, was sufficient to allow the statement to refresh memory. The application to allow the document to be put in the hands of the witness was refused due to concerns about potential prejudice and the risk of the witness being influenced by the document. Regarding the statutory construction, the court concluded that the phrase "fresh in the memory" should not be uniformly construed across the statute unless explicitly amended to do so, even where another section had been amended to define it.

The final orders of the court included the admissibility of the WeChat evidence against the accused and the refusal of leave to put the statement in the hands of the witness. The court's interpretation of the statutory phrase "fresh in the memory" was also confirmed in its decision.

Orders