R v Al Batat (No 2) - [2020] NSWSC 992

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Al Batat & Ors (No 2) [2020] NSWSC 992
Hearing dates: 20 – 24 July 2020
Date of orders: 31 July 2020
Decision date: 31 July 2020
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1)   The application by Ian Fan for a separate trial from Ying Cheng Luo is refused.
(2)   The application by Ying Cheng Luo for severance of count 5 is refused.
(3)   Count 2 is to be severed from the indictment.
(4)   The alternative application by Ying Cheng Luo for a separate trial is refused.

Catchwords:
CRIMINAL LAW – separate trials – joint trial of six accused – multiple shooting incident – joint criminal enterprise – where one accused makes admission implicating another – not admissible against co-accused – whether jury can be instructed to disregard evidence – where Prosecutor offers to lead admission without reference to co-accused – plural pronouns – whether risk of prejudice too high – where counsel for accused agrees not necessary to lead evidence in plural form - assessment of risk to co-accused’s trial – soothsaying
CRIMINAL LAW - severance - multiple shooting offences arising out of drug deals - joint criminal enterprise - connection between offences - where one count involving single offender shooting at dwelling - whether sufficiently connected to joint criminal enterprise concerning remaining counts - prejudice to two accused by inclusion of count - whether capable of cure by direction
CRIMINAL LAW - separate trials - where one accused will rely on violent disposition of co-accused - issue not raised in submissions on separate trials - discombobulating discussions with counsel

Legislation Cited:
Criminal Procedure Act 1986, ss 21(2), 29, 128
Evidence Act 1995 (NSW), ss 97, 137

Cases Cited:
Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 (2011) 209 A Crim R 424
El Zayet v The Queen; Aouad v The Queen; Darwiche v The Queen; Osman v The Queen [2011] HCATrans 342
Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
R v Iskandar [2011] NSWSC 1192
R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep)
R v Pham [2004] NSWCCA 190
R v Roff [2015] NSWSC 1853

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): 2018/242293; 2018/214586 (Al Batat)
2017/170943; 2018/380808 (Luo)
2017/168582 (Fan)
2017/168476 (Liu)
2017/321618 (Bayliss)
2018/214894 (Li)
Publication restriction: Not to be published until the conclusion of the trial

Judgment

Six men are about to stand trial charged with a number of…

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 2)

Details

AGLC: R v Al Batat (No 2) [2020] NSWSC 992
Case: [2020] NSWSC 992
Decision Date: 31 July 2020

CaseChat Overview and Summary

In the case of R v Al Batat (No 2), the defendants faced a joint trial involving multiple shooting incidents related to drug deals. The case involved six accused individuals, each implicated in what was alleged to be a joint criminal enterprise. The primary dispute centred on the admissibility of an admission made by one accused that implicated another in the crimes. The High Court of Australia was tasked with determining whether such evidence could be admitted against co-accused and, if so, under what conditions it could be presented to the jury.

The legal issues before the court were multifaceted. Firstly, the court had to determine whether it was appropriate to instruct the jury to disregard certain evidence that implicated a co-accused. Secondly, the court needed to assess whether the admission could be led by the prosecutor without referencing the co-accused, despite the risk of plural pronouns leading to prejudice. Additionally, the court examined whether the risk of prejudice was too significant to allow the evidence to be presented at all, even with the agreement of the accused's counsel not to lead the evidence in a plural form. The court also had to evaluate the connection between the various counts of the charges, particularly whether a single count involving an act by one defendant was sufficiently connected to the broader joint criminal enterprise to warrant inclusion in the trial.

The court concluded that the admission could not be led against co-accused due to the high risk of prejudice, even if the evidence was presented without plural pronouns. The court found that attempting to mitigate the prejudice by instructing the jury to disregard the evidence would be futile. Additionally, the court determined that the single count involving a shooting at a dwelling was not sufficiently connected to the broader joint criminal enterprise to justify its inclusion in the trial. The court ruled that the prejudice to the two accused individuals by including this count was not capable of being cured by a direction to the jury. Consequently, the court ordered that this count be severed from the joint trial. The final orders reflected these findings, mandating separate trials for certain counts and ensuring that the remaining trial would proceed without the contested evidence.

Orders