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
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 LiRepresentation: Counsel:
Solicitors:
P Hogan (Crown)
B Rigg SC (Al Batat)
R Webb (Luo)
T Quilter (Fan)
N Carroll (Liu)
A Norrie (Bayliss)
D Carroll (Li)
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
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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…
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- Case
- [2020] NSWSC 1227
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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