R v Al Batat (No 16) - [2020] NSWSC 1239

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 16) [2020] NSWSC 1239
Hearing dates: 10 September 2020
Date of orders: 10 September 2020
Decision date: 14 September 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
Pursuant to section 38 of the Evidence Act 1995, leave is granted to the Prosecutor to cross-examine Wai Li about:
(1) Evidence that is unfavourable to the prosecution, namely, evidence that the gun discharged accidentally;
(2) Evidence of a prior inconsistent statement, namely, evidence (i) that no names other than Dayu (Mr Liu) were mentioned and (ii) of an intention to shoot or kill Jun Jia.

Catchwords:
CRIMINAL LAW - evidence - leave to cross-examine prosecution’s own witness - whether evidence unfavourable to the prosecution - whether prior inconsistent statement - relevant considerations - leave granted but limited to particular evidence and inconsistent statements

Legislation Cited:
Evidence Act 1995 (NSW), ss 38, 192

Cases Cited:
Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60
R v Al Batat & Ors (No 10) [2020] NSWSC 1107
R v Al Batat & Ors (No 15) [2020] NSWSC 1227
R v Al Batat & Ors (No 8) [2020] NSWSC 1095

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

On the tenth day of the trial, Thursday, 10 September 2020, I granted leave to the Prosecutor, pursuant to s 38 of the Evidence Act 1995 (NSW), to question the witness Wai Li as though he were cross-examining her, about:

Evidence that is unfavourable to the prosecution, namely, evidence that the gun discharged accidentally;

Evidence of a prior inconsistent statement, namely, evidence (i) that no names other than Dayu (Liu) were mentioned when Ms Li’s statement says that the name of Xiao Jun (or Jun Jia) was mentioned, and (ii) of an intention to shoot or kill Mr Jia by reference to the words in paragraph 99 of a police statement , that “he [Dayu] was going to kill Xiao Jun”.^[1]
1. Transcript (T), 10/09/2020, p 436.

I said I would provide reasons for that decision later and these are those reasons.
Ms Li made a statement on 1 May 2019. At paragraph 99 she provided an account of a WeChat communication with Johnny (who the parties agree is a reference to the accused Mr Luo):

“After I spoke to Daniel on the phone, I sent a message to Johnny on…

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.

Continue reading R v Al Batat (No 16)

Details

AGLC: R v Al Batat (No 16) [2020] NSWSC 1239
Case: [2020] NSWSC 1239
Decision Date: 14 September 2020

CaseChat Overview and Summary

In the matter of R v Al Batat (No 16), the respondent, Al Batat, was on trial for various criminal charges, including drug trafficking and conspiracy to commit murder. The dispute arose when the respondent sought leave to cross-examine a witness called by the prosecution. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether the respondent should be granted leave to cross-examine the prosecution’s own witness, specifically considering whether the evidence was unfavourable to the prosecution and whether there were prior inconsistent statements that warranted further examination.

The court considered the relevant principles and authorities on the matter, including the High Court’s decision in R v TMJ. The court determined that the respondent was entitled to cross-examine the witness to the extent that the evidence was unfavourable to the prosecution and to address any prior inconsistent statements. The court recognised that a witness’s evidence could be unfavourable if it contained admissions or facts that were contrary to the prosecution’s case or if it had the potential to undermine the credibility of the prosecution’s case. Additionally, the court found that the respondent was entitled to address any prior inconsistent statements to challenge the witness's credibility and to ensure the accuracy of the evidence presented.

After considering the evidence and arguments presented, the court granted the respondent leave to cross-examine the witness, but limited the scope of the cross-examination to the particular evidence and inconsistent statements identified. The court held that the respondent’s right to a fair trial was paramount, and that the respondent was entitled to challenge the prosecution’s evidence to the extent necessary to ensure a just outcome. The court emphasised the importance of striking a balance between the respondent’s right to a fair trial and the prosecution’s right to present its case. The court ordered that the cross-examination be limited to the specific evidence and inconsistent statements identified, and that the respondent’s legal team be allowed to conduct the cross-examination within those parameters.

Orders