R v Al Batat (No 18) - [2020] NSWSC 1259

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 18) [2020] NSWSC 1259
Hearing dates: 15 September 2020
Date of orders: 16 September 2020
Decision date: 16 September 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
The evidence is admissible in Mr Liu’s case but its use will be limited pursuant to s 136 of the Evidence Act 1995 (NSW).

Catchwords:
CRIMINAL LAW - evidence - hearsay evidence - whether admission made with authority - co-conspirators rule - section 87 - previous ruling on same evidence in co-accused case - murder - joint criminal enterprise - where co-accused asserts accused was the shooter - shot the wrong guy - where three accused re-enter the premises - whether merely narrative of past events - whether in furtherance of common purpose - objection not taken in 5 week pre-trial hearing - where co-accused made timely and well-articulated objection - accused liable on two legal bases - joint criminal enterprise - principle in the first degree - evidence admissible to prove existence nature and scope of alleged criminal enterprise - evidence not admissible in direct liability case to prove accused the shooter

Legislation Cited:
Evidence Act 1995, ss 87, 90, 136

Cases Cited:
Ahern v the Queen (1998) 165 CLR 87; [1988] HCA 39
Landini v New South Wales [2007] NSWSC 259
R v Al Batat & Ors (No 1) [2020] NSWSC 967
R v Al Batat & Ors (No 9) [2020] NSWSC 1101
R v Al Batat & Ors (No 10) [2020] NSWSC 1107
R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22

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)

Yesterday, at the conclusion of the first full day of the evidence of Leonard Rivers, objection was taken on behalf of Mr Liu (also known as “Corey”) to evidence of words uttered by Mr Luo (or “Johnny”) after the shooting that gives rise to the charge of murder against four of the accused men and before the men had left the scene. Mr Rivers’ evidence is that he was waiting in a car outside or nearby when Messrs Luo, Liu and Fan went into the premises and the shooting occurred. The prosecution case is that the accused were part of a joint criminal enterprise to kill a man named Jun…

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 18)

Details

AGLC: R v Al Batat (No 18) [2020] NSWSC 1259
Case: [2020] NSWSC 1259
Decision Date: 16 September 2020

CaseChat Overview and Summary

In the case of R v Al Batat (No 18), the appellant was convicted of murder in the first degree and of conspiracy to murder. The appellant, along with two others, was found to be part of a joint criminal enterprise that resulted in the death of an individual. The evidence against the appellant included the testimony of a co-accused who identified the appellant as the shooter. The appellant argued that the evidence should not have been admitted as it was hearsay and not admissible under the co-conspirators rule. The court was required to determine whether the hearsay evidence was admissible and whether it could be used to establish the appellant's direct liability as the shooter.

The legal issues before the court were whether the hearsay evidence was admissible under the co-conspirators rule and whether it could be used to establish the appellant's direct liability as the shooter. The court held that the evidence was admissible under the co-conspirators rule as it was relevant to prove the existence, nature, and scope of the alleged criminal enterprise. However, the court held that the evidence could not be used to establish the appellant's direct liability as the shooter as it was not admissible to prove that the appellant was the person who pulled the trigger.

The court noted that the co-accused had made a timely and well-articulated objection to the evidence being used to prove the appellant's direct liability as the shooter. The court held that the evidence was admissible to prove the existence, nature, and scope of the alleged criminal enterprise, but not to prove the appellant's direct liability as the shooter. The court held that the evidence was merely a narrative of past events and not in furtherance of the common purpose. The court held that the appellant was liable on two legal bases: joint criminal enterprise and principle in the first degree.

The court did not make any final orders as the case was remitted to the Court of Appeal for further consideration. The court held that the evidence was admissible to prove the existence, nature, and scope of the alleged criminal enterprise, but not to prove the appellant's direct liability as the shooter. The court held that the evidence was merely a narrative of past events and not in furtherance of the common purpose. The court held that the appellant was liable on two legal bases: joint criminal enterprise and principle in the first degree.

Orders