R v Al Batat (No 17)

[2020] NSWSC 1246

Supreme Court

New South Wales

Medium Neutral Citation:	R v Al Batat & Ors (No 17) [2020] NSWSC 1246
Hearing dates:	11 September 2020
Date of orders:	11 September 2020
Decision date:	11 September 2020
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	The application for leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine witness is granted.
Catchwords:	CRIMINAL LAW - evidence - unfavourable witness - whether leave should be granted to cross-examine - whether prior inconsistent statement - where earlier application granted on limited basis - whether leave should be granted to allow Prosecutor to put motive to witness - alleged motive to assist the accused - application granted
Legislation Cited:	Evidence Act 1995, ss 38
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

EX TEMPORE Judgment (Revised)

1. The Prosecutor makes an application for leave to ask questions of the current witness, Ms Wai Li, as if he were cross-examining her. A similar application was made and granted yesterday, but on a different topic. The present application is based on evidence concerning a meeting, possibly a chance meeting, between the previous witness Mr Jun Jia and a man, James, who is said to have been behind (1) some fairly substantial drug dealing and (2) two attempts on Jun Jia's life. It is alleged, on the prosecution case, that this James put out a contract on Mr Jia's life when Mr Jia failed to pay for some drugs.

2. The current witness, on the prosecution's case, received some of the relevant drugs and dealt with them. Her evidence-in-chief included some evidence relating to a meeting at a hotel during which she was with another man, David Boikov, and saw the witness Jun Jia. That evidence was recorded at pages 394 to 395 of the transcript:

“Q. To get back to your car when you left that particular motel room, how did you get out to the entrance of the motel?

A. INTERPRETER: There are two exits and we just randomly take one and came down.

Q. Now you said "came down", what level was the motel room on, was it on the ground level or on a different level?

A. INTERPRETER: Second floor.

Q. How did you get down from the second floor to the ground level?

A. INTERPRETER: I walked.

Q. When you walked down from the second level, what was the next thing that you saw?

A. INTERPRETER: Xiao Jun.

Q. Where was Xiao Jun when you saw him?

A. INTERPRETER: He came along down.

Q. After you saw Xiao Jun, what did he do?

A. INTERPRETER: It was a surprise because it was pretty dark over there, we bumped into each other and "Hey, you are down, you're coming down".

Q. Did you see anyone else?

A. INTERPRETER: James.

Q. Where was James?

A. INTERPRETER: He was outside the motel and in a car.

Q. Where did you go from there?

A. INTERPRETER: Well, and I exited the entrance of the motel.

Q. After you exited the entrance of the motel, where did you go?

A. INTERPRETER: We went to the car on the other side, other side of the street.

Q. From there did you go home?

A. INTERPRETER: Yes.” [1]

1. Transcript (“T”), 09/09/2020, pp 394-395.

3. In essence, that part of the examination-in-chief of the witness was based on paragraphs 67-69 of her statement:

“67. After Ada placed the ‘ice’ in our bag, David took the bag and we left the room. When we left the room I remember standing in the corridor looking to the left and right as we weren’t familiar with which way we should go. It was dark outside at this stage and the lights were out. We eventually turned to the right and went down the staircase. When we got downstairs I saw Xiao Jun suddenly appear from a staircase on the other side which shocked both of us. Around this time I also saw ‘James’ sitting in a black 4 door, four wheel drive which was parked out the front of the motel near the front gate and reception area which had lighting. James car was facing towards the motel and I could see it was him as it was only a few metres away.

68. I was worried that we were going to be robbed as I did not know at this point that the drugs belonged to James. I told David we should go and we hurried out of there.

69. David and I got in our car and drove straight back to our place in Waterloo.”

4. Yesterday and today, Mr Webb, who appears for Mr Luo, cross-examined Ms Li. In the course of his interrogation, Mr Webb put certain things to her about that meeting, including propositions to the effect that Mr Jia and James exchanged money. Mr Webb accepts that he proposes to use that evidence in an attempt to undermine or rebut the prosecution case, that there was a drug debt. This is highly relevant to the whole theory of the prosecution case, namely that the shootings with which the jury is concerned arose from that drug debt.

5. The prosecution says that s 38 of the Evidence Act 1995 (NSW) is engaged because the evidence that Ms Li gave in cross-examination is unfavourable to it, and is also inconsistent with the material in paragraph 67 of her statement. Some relevant parts of the cross-examination are as follows:

“Q. When you went downstairs, so this is the car park to the motel, you have also told us, told the jury that you saw a person who goes by the name of James, is that right?

A. INTERPRETER: Yes.

Q. And downstairs, did you see this person Xiao Jun speak with James?

INTERPRETER: The question is?

WEBB

Q. Downstairs, did you see this person Xiao Jun speak with James?

A. INTERPRETER: Yes.

Q. Did you see Xiao Jun hand a bag to James?

A. INTERPRETER: Yes.

Q. Did you see this happen when you were leaving the motel basically on your way home?

A. INTERPRETER: Yes.

Q. Ma'am, as far as you know, was that the bag which had the drugs in it?

A. INTERPRETER: I cannot say for certain whether it holds money or things.

Q. Was it one of the bags you'd seen earlier in the motel room on the second floor?

A. INTERPRETER: No.

Q. Had you seen that bag before?

A. INTERPRETER: No.

Q. Now, ma'am, as you were leaving the motel, and after Xiao Jun handed this bag to this person you've indicated you thought was called James, did you see anything after that or was that all you saw as you left the motel to go home?

A. INTERPRETER: No.

Q. When you say "no", are you indicating that was all you saw as you left, you didn't see anything more?

A. INTERPRETER: Correct.

Q. And, ma'am, if I understand your evidence, you don't know what was in that bag?

A. INTERPRETER: Yes.

Q. You have indicated that in the motel, there was a drug deal which took place?

A. INTERPRETER: Yes.

Q. And, ma'am, you've indicated that this person, Ada, handed a large sum of money to Xiao Jun?

INTERPRETER: Witness asked for repetition and I repeat, Mr Defence, what you said.

WEBB: Yes.

A. INTERPRETER: I didn't say that.

Q. Okay, is that because you didn't see Xiao Jun being handed any money in the motel?

A. INTERPRETER: Handing the money to Xiao Jun, it's me who handed the sum worth the money and the sum worth $70,000 to Xiao Jun.

Q. Did Xiao Jun put the money in a bag?

A. INTERPRETER: I cannot say for sure because I left, I depart or left after handing over the money to him.

Q. Is that why you can't say what was in the bag when Xiao Jun handed to James?

A. INTERPRETER: Correct. [2]

2. T, 11/09/2020, pp 466-467.

…

Q. Ma'am, after you left the motel, is that man the man, Xiao Jun, that you saw handing the bag to James downstairs?

A. INTERPRETER: I saw him and carrying that and entered into James' car, but I didn't know, I do not know what's in it. [3] ”

3. T, 11/09/2020, p 469.

6. The Prosecutor also submitted that Ms Li is agreeing to these propositions in a deliberate attempt to assist Mr Luo. A similar submission, to the effect that she was not making a genuine attempt to give evidence, was made in the application yesterday. In light of the evidence to that point, I did not accept that submission and limited the cross-examination essentially to the particular unfavourable evidence and to the inconsistency in the statement.

7. Having heard her evidence this morning, I have come to a different view, and take the view that she was or seemed to be, rather than making a genuine attempt to give evidence, agreeing with a number of propositions that were favourable to Mr Luo.

8. In my assessment, the prosecution, even at this late stage in Ms Li’s evidence, is entitled to explore that possibility as if he were cross-examining the witness. Because this will essentially happen in re-examination (although technically I will be granting leave to adduce further evidence by way of cross-examination) fairness will require that, if sought, Mr Webb will have the opportunity to cross-examine further.

9. Consequently, the ruling I make pursuant to s 38 of the Evidence Act is that the Prosecutor may question the witness Wai Li as though he were cross-examining her about evidence that is unfavourable to the prosecution. That is, evidence of a transaction in which Mr Jia provided a bag full of cash to the man James and evidence of the general circumstances of that meeting; the inconsistencies between her evidence in the trial and paragraph 67 of her statement, dated 1 May 2019; and whether she is deliberately providing evidence to the Court in order to assist Mr Luo in the trial.

“WEBB: Your Honour, the issue of the Crown putting that this was to assist Mr Luo, I object to that.

HIS HONOUR: You have objected to all of it.

WEBB: I object to that formulation in terms of impugning the evidence on credit.

HIS HONOUR: Mr Prosecutor? How are you going to put this?

CROWN PROSECUTOR: What I had proposed to put was that she was deliberately trying to assist Mr Luo in the trial and that she was not telling the truth.

HIS HONOUR: That is what I thought you were putting.

…

WEBB: In my submission the witness is criminally concerned in a more general way. In fact, whilst Johnny is the person who sends that message about which there has been some evidence, whatever the case may be, whatever happened in the hotel room, Mr Luo is not there, and the evidence is exceedingly thin in terms of any nexus between Mr Luo and what happened in that hotel room.

HIS HONOUR: It wasn't so thin that you didn't cross examine for about two hours on it, that may be an exaggeration, you will forgive me, I used to be a barrister.

WEBB: But your Honour, that has nothing to do with Mr Luo in any specific way. Step one is to challenge the Crown case in the way it has been conducted, that, look, just all about this contract killing, A, there is no contract, and by the way, there is not even a debt. That has implications your Honour will see between the bilateral arrangement between count 1 and the temple count. It would be, in my submission, an unfair prejudice for the jury to think that whatever was or wasn't said, in some way, at the behest of some loyalty she may feel or nexus she may have with Mr Luo, that would be a prejudice that I'm piping up about that.” [4]

4. T, 11/09/2020, pp 476-477.

10. At the conclusion of giving my ruling on the s 38 application made by the prosecution, Mr Webb sought to be heard further on the application and specifically on the question of whether the Prosecutor should be entitled to put to the witness that she is deliberately giving evidence favourable to Mr Luo. That submission was made in the context that I had already made a ruling on the issue, having heard from both counsel.

11. I have reconsidered the ruling in the light of counsel's further submissions and also taking into account his concession in his first submission that the evidence given in cross-examination constituted a substantial departure from the statement. That concession was made in the following terms:

“HIS HONOUR: … The question is whether or not leave should now be granted to cross examine, given the evidence she has given in answer to your questions and what is contained in her statement at about paragraph 67. Then the more general suggestion, that she was just agreeing with you to assist Mr Luo.

WEBB: I can't really make a submission about that, your Honour. There was an evident departure, on one view, from a previous account...” [5]

5. T, 11/09/2020, p 475.

12. As I said in the course of my ex tempore and brief judgment ruling on the s 38 application, the assessment that I made of the witness yesterday is different to the assessment I have made of the witness today. It is open to the jury to form a particular view as to what is motivating Ms Li in giving her evidence. The prosecution will want to put that to the jury and is entitled under the umbrella of the ruling I'm making under s 38 to put that motive to her.

13. The ruling that I made earlier (at [9] above) is confirmed for those reasons. The application for leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine witness is granted.

**********

Endnotes

Decision last updated: 25 November 2020