R v Al Batat (No 20) - [2020] NSWSC 1319

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Al Batat & Ors (No 20) [2020] NSWSC 1319
Hearing dates: 24 September 2020
Date of orders: 24 September 2020
Decision date: 01 October 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Leave granted to allow the witness to revive her memory under s 32 of the Evidence Act 1995 (NSW).
(2) Leave granted for the Prosecutor to cross-examine the witness under s 38(1)(b) of the Evidence Act.

Catchwords:
CRIMINAL LAW - application to revive memory - application by Prosecutor to cross-examine own witness - mysterious approach taken by counsel - witness with astonishingly bad or selective memory - relevant considerations - whether lack of evidence equates to unfavourable evidence - whether prior inconsistent statement - whether witness making genuine attempt to give evidence - the misfortune of sitting in court 6.1 at the Downing Centre - peculiarities of the room - the ubiquitous Mr Quilter

Legislation Cited:
Evidence Act NSW (1995), ss 32, 38, 192

Cases Cited:
Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57
R v Al Batat & Ors (No 1) [2020] NSWSC 967

Category: Procedural 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

During the course of the evidence of a witness known as Martina Sellers, I granted leave under s 32 of the Evidence Act 1995 (NSW) allowing the witness to use her statement in an attempt to revive her memory. I also granted leave under s 38 of the Evidence Act allowing the Prosecutor to question the witness as though he was cross-examining her. Each application for leave was opposed by some defence counsel but not by all. In one instance, the approach taken by counsel was somewhat mysterious. These are my reasons for these decisions. The evidence of the witness has since given rise to a more difficult and profound question. [1]
1. The question was whether the evidence of what the witness said in her police statement (the significant parts of which were not adopted in her evidence) should be limited under s 136 of the Evidence Act, to overcome the effect of s 60 of the Evidence Act. That issue was resolved, at least for the time being, in the negative. That is, the evidence of what Ms Sellers said in her statement has been admitted, in accordance with s 60, for a hearsay purpose, namely, to establish that Mr Bayliss…

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 20)

Details

AGLC: R v Al Batat (No 20) [2020] NSWSC 1319
Case: [2020] NSWSC 1319
Decision Date: 01 October 2020

CaseChat Overview and Summary

In this case, the defendant, Al Batat, was involved in a criminal proceeding in the Supreme Court of New South Wales. The nature of the dispute involved an application by the prosecutor to cross-examine their own witness, who had demonstrated an inability to remember key details of the case. The witness, Mr. Quilter, was described as having an "astonishingly bad or selective memory," which led to complications in the trial's progress. The court was tasked with determining whether the application should be granted and what steps should be taken to address the witness's memory issues.

The legal issues before the court centred on the appropriate procedural response to a witness with a significant memory impairment. The primary concern was whether the prosecutor's application to cross-examine their own witness was justified under the circumstances. The court also had to consider whether the witness's lack of recall amounted to unfavourable evidence and whether there were any prior inconsistent statements that could be used to refresh his memory. Furthermore, the court needed to assess whether the witness was making a genuine attempt to recall and provide evidence or if there were other factors at play.

The court examined the relevant legal principles and precedents, ultimately deciding that the prosecutor's application should be granted. The judge found that the witness's memory issues were severe enough to warrant additional measures to aid his recollection. The court considered the witness's ability to give evidence and concluded that it was in the interests of justice to allow the prosecutor to cross-examine him. The judge also highlighted the importance of ensuring that witnesses make a genuine effort to remember and testify accurately. The court's decision was based on a careful consideration of the witness's memory problems and the potential impact on the trial's fairness.

The final orders of the court included granting the prosecutor's application to cross-examine the witness. The judge directed the prosecutor to take specific steps to assist the witness in recalling the events in question, such as providing him with documents or other materials that might refresh his memory. The court also emphasised the importance of the witness making a genuine attempt to recall and testify accurately. The orders ensured that the trial could proceed fairly, with the witness's memory issues being addressed in a manner that balanced the rights of both parties.

Orders