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

1. 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 supplied guns.

2. Martina Sellers is a pseudonym. The NSW Commissioner of Police applied for various orders to protect Ms Sellers’ identity and her safety. Some of these applications were granted; others were not. [2] It is common ground that Ms Sellers was present with Mr Bayliss when he travelled from the Central Coast and attended a meeting with Mr Liu at his apartment in Burwood on 1 February 2017. The prosecution alleges that Messrs Luo and Fan were also present at the apartment in Burwood for a period of time. It is the prosecution case that Mr Bayliss supplied Messrs Liu, Luo and Fan with two guns and they supplied him with drugs. The defence case, in each instance, appears to be that drugs were supplied but guns were not. Messrs Liu, Luo and Fan, as well as Mr Al Batat, are charged with murder (count 4 on the indictment) and an attempted murder (count 5 on the indictment) that allegedly took place later on the same day. They are alleged to have used the guns provided by Mr Bayliss although neither of those guns is said to be the murder weapon. Mr Bayliss is only charged with two counts of supplying the firearms (counts 2 and 3 on the indictment). Ms Sellers’ account is central - perhaps critical - to the case against Mr Bayliss and is an important part of the circumstantial case against Messrs Luo, Liu, Fan and Al Batat.

   2. R v Al Batat & Ors (No 1) [2020] NSWSC 967.

3. Ms Sellers’ made a statement to the police on 29 June 2017, that is, around 5 months after the events to which it relates. It was an induced statement. The police told Ms Sellers that nothing she said would be used against her. She admitted drug use and involvement in the illicit transactions that would give rise, at least, to criminal liability for concealing serious offences and perhaps complicity as an accessory. She has been charged with no offences arising from her involvement in the events of 1 February 2017. The statement sets out in some detail the events leading up to and including the meeting at the apartment in Burwood. Of particular relevance to the present applications (and the application to limit the use of the evidence) is the fact that Ms Sellers referred to Mr Bayliss having a gun or guns in the car, taking them into the apartment and the property or possession of those guns passing to the men inside the apartment at about the same time as they supplied Mr Bayliss with a sizeable chunk of methylamphetamine. She also spoke of counting money in the car and that money being handed over to one of the three men with whom Mr Bayliss was dealing.

4. Ms Sellers was due to commence giving evidence on Tuesday, 22 September 2020. She did not attend Court. Attempts by the Prosecutor and investigating police to contact her were unsuccessful. The trial was adjourned until Wednesday, 23 September. Again, Ms Sellers did not attend. Ongoing attempts to contact her, including through her solicitor who appeared for her in other applications earlier in the trial, were unsuccessful. A bench warrant was issued for her arrest. On Thursday, 24 September 2020, having been made aware of the existence of the warrant, Ms Sellers came to court, under her own steam but late.

5. She gave evidence on the voir dire in which she indicated she objected to giving evidence that might tend to incriminate her. I upheld her objection but required her to give evidence with the protection of a certificate under s 128(3) of the Evidence Act. [3]

   3. Transcript (T), 24/09/20, pp 962-964.

6. When called to give evidence before the jury, she was questioned by the Prosecutor and demonstrated either an astonishingly bad or selective memory or a powerful desire not to assist the prosecution in relation to the gun supply charges. Her evidence before the jury commenced as follows:

“(11.40AM)

Q. Your name is Martina Sellers?

A. Yes.

Q. You made a statement to the police on 29 June 2017, is that right?

A. Yes.

Q. When you made that statement, the police made you a promise that no information in it will be used in criminal proceedings against you?

A. Yes.

Q. And then you told the police details in that statement about you being aware of a drug supply and a supply of guns?

A. Yes.

Q. Also you told them about the fact that at that time you, yourself, were using the drug ice sometimes?

A. Yes.

Q. This morning, when the jury weren't here, in court you told his Honour that you would object to giving evidence about those matters because they might incriminate you?

A. Yes.

Q. His Honour told you that he would require you to answer questions about those things. Firstly, that is what his Honour told you?

A. Yes.

Q. But that the evidence you give in this trial can't be used in any criminal proceedings against you?

A. Yes.

Q. But that the exception to that is criminal proceedings for charges, if you

don't tell the truth in these criminal proceedings?

A. Yes.

Q. I'm going to start by asking you some questions about a time at the very end of January of 2017, okay?

A. Yes.

Q. Did you meet a person who was introduced to you as Shiv at a party with some friends of yours on the Central Coast?

A. Yes.

Q. After you met him, did you and he message each other on Facebook and end up becoming Facebook friends?

A. Yes.

Q. In the course of that Facebook messaging, was there a message about you going

WEBB: I object to leading at this point. If a non-leading question could be asked.

CROWN PROSECUTOR: I was just identifying the topic, your Honour.

HIS HONOUR: You are on notice I guess.

CROWN PROSECUTOR: Yes, your Honour.

Q. In the course of messaging with this person Shiv, was there some discussion about going somewhere other than the Central Coast with him?

A. I'm not too sure. I hardly remember, vaguely remember even messaging him, yeah, in 2017.

Q. Do you remember actually going on a trip with him somewhere other than the Central Coast?

A. Yes, I remember, but it was very vague.

Q. Whereabouts did you go?

A. Not too sure exactly where, because like I don't really go up to Sydney, but, yeah, somewhere around Sydney.

Q. So it was somewhere in Sydney?

A. Somewhere, yeah.

Q. When you made a statement to the police, did you remember the suburb that you went to?

A. I'm not too sure.

Q. Where were you before you came with him to Sydney?

A. I would have been at home.

Q. When you were at home, what contact was there about going to Sydney with him on the day that you came to Sydney?

A. Phone, I'm not too sure.

Q. Did you have access to Facebook on your phone at that time?

A. Yeah, yeah, I did.

Q. So the contact was on your phone, whether it was Facebook or an SMS?

A. Either one of them, yeah.

Q. How long after you got whatever the form of that message was that day, how long was it before you actually left?

A. I'm not too sure, I couldn't tell you the exact time.

Q. Can you remember the time of day, approximately, that you left?

A. No, that trip is very vague to me.

Q. By that, what I mean is was it early in the morning or was it some time in the middle of the day or was it at night that you came down?

A. Yeah, I'm honestly not too sure.

Q. Do you remember now what sort of car you came to Sydney in?

A. No, sir.

Q. While you were driving to Sydney, did you stop anywhere?

A. Um, maybe to get lunch, I'm not too sure.

Q. Do you remember now anything about how he was getting directions for where he was going?

A. I'm assuming maps, I'm not a hundred per cent but, yeah, maybe maps.

Q. When you say "maps", do you mean like an old fashioned paper map or an application on a phone?

A. Maybe your phone application.

Q. Can you remember seeing any phones in the car in the course of the trip?

A. Yeah, mine and maybe - yeah, his.

Q. Can you remember whereabouts his phone was in the course of the trip?

A. No, sorry.

Q. Did he have only one phone or more than one phone or don't you remember?

A. I'm not too sure.

Q. Can you now remember any particular topics of conversation or any particular things that happened in the course of the journey?

A. No, sir, we hardly spoke, yeah.

Q. Can you remember any of the things that you did speak about?

A. No, sir.

Q. Can you [remember] anything that happened while you were driving to Sydney with him?

A. No, sir.

Q. When you made your statement to the police in June of 2017, so only about five months after the time that you came to Sydney, was your memory then better than it is now?

A. No, no, sir.

CROWN PROSECUTOR: Your Honour, I have an application to make. It is an application that the witness be permitted to refresh her memory.

HIS HONOUR: She just said her memory wasn't any better then than it is now.

CROWN PROSECUTOR: Then I have a different application to make.

HIS HONOUR: I suppose I have to hear it. Sorry, members of the jury, the prosecutor wants to make an application and I think everyone would agree it needs to be made in the absence of the jury?

ALL COUNSEL INDICATED YES.” [4]

4. T, 24/09/20, pp 965-968.

7. The Prosecutor made an application pursuant to s 32 of the Evidence Act for the witness to use her statement in the witness box to attempt to refresh her memory. In the alternative, he sought to make an application to question the witness in the form of cross-examination under s 38 of the Evidence Act. Ms Sellers’ statement was tendered on the voir dire (Exhibit VDU) and marked for identification in the trial (MFI 24).

8. While there was some mystery surrounding the approach taken by counsel for Mr Luo, [5] only Mr Norrie (appearing for Mr Bayliss) opposed the application to refresh the witness’s memory in any serious way. [6] His opposition was based on the witness’s assertion that her memory was no better three years ago than it was today. As I said in the course of argument, the Prosecutor was not very persistent in attempting to have the witness recall (or give evidence of) the events set out in some detail in her statement. An issue arose as to whether matters relevant to s 32 should be canvassed on the voir dire or in the presence of the jury. [7] Mr Bayliss and Mr Liu opposed this course and I accepted their submission that, in the circumstances, the matter should unfold before the jury so that it could see and assess the witness’s response.

   5. T, 24/09/20, pp 970-972.

   6. T, 24/09/20, p 973.

   7. T, 24/09/20, pp 972-974.

9. The Prosecutor raised the fact that the witness appeared to be looking at a large screen in front of the witness box. That screen is a peculiarity of the courtroom in which the trial is being conducted. The screen presents a live feed of what purports to be a view of the accused in the dock. It exists, so far as I can tell and as I have been told by Judges who have the misfortune of sitting in this courtroom more frequently, because the presiding Judge cannot see the whole of the dock from their position on the bench. As it is, it only depicts part of the dock and only Mr Fan and Mr Liu (and the ubiquitous Mr Quilter of counsel) can be seen. Mr Al Batat, Mr Luo and Mr Bayliss are in the section of the dock furthest from the bench and the view of those three men is obscured. This is not the only infelicity in the geography of courtroom 6.1 of the Downing Centre. Earlier in the trial, renovations were carried out, at the jury’s request and thanks to the ingenuity of the CEO of the Supreme Court, to ensure the jury was able to fulfil its function (for example, by actually seeing the witnesses).

10. In any event, the Prosecutor’s observation accorded with my own. Further, when Ms Sellers entered the courtroom and the witness box she appeared to spend some time looking in the direction of the dock and, in particular, identifying where Mr Bayliss was seated.

11. I rejected the witness’s evidence that her memory was no better three years ago than it was today. [8] I was satisfied of the matters relevant to s 32 and, considered the factors that arose under s 192 of the Evidence Act. One matter that operated on my mind was the fact the witness’s performance to that point was such that I was inclined (provisionally) to grant an application under s 38. However, it was preferable that an attempt be made to have the witness revive her memory before permitting leading questions in the form of cross-examination. Accordingly, I granted leave under s 32 of the Evidence Act.

    8. T, 24/09/20, pp 968, 974.

12. The witness’s evidence continued:

“IN THE PRESENCE OF THE JURY

HIS HONOUR: You remain on the oath or affirmation you took earlier, Ms Sellers.

CROWN PROSECUTOR

Q. Ms Sellers, I had asked you some questions about any particular conversation or any particular events that you recall from the trip from the Central Coast area to Sydney. Can I ask you to have a look at this document, please (shown). I have had it handed to you open at page 3, but can you just confirm that that's a copy of the statement that you made to the police on 29 June 2017. You will see that on the first page, if it is not on the third page?

A. Yeah, yeah it is.

Q. At the time that you made that statement, if you look at paragraph 1, you said that it was true to the best of your knowledge and belief, didn't you?

A. Yes, that's true.

Q. Can you read, just to yourself, so don't read it out loud, on page 3, paragraph 16?

A. Yes.

Q. And in particular, the last two lines of paragraph 16?

A. Yes.

Q. Then, if you just read paragraph 17 as well to yourself?

A. Yes.

Q. Having read that, what you told the police on 29 June 2017, does that help you remember any of the conversation or any of the events in the car?

A. No, sir, it was a very bad time for me at this time of my life and I was very like, I was very hard on the drugs. Honestly I don't remember. It's vague, but nah.

CROWN PROSECUTOR: Your Honour, I make the further application that we discussed.” [9]

9. T, 24/09/20, p 975.

13. Paragraphs 16-17 of Martina Sellers’ statement dated 29 June 2017 are in the following terms:

“16. From my house, Shiv drive up towards Bulls Hill Road, Woy Woy Bay, towards the highway and headed towards Sydney. There was not much talk when we were on the highway to Sydney. I remember Shiv told me he was 30 years old but I thought he might be a bit older. I told him I was twenty when in fact I was only nineteen because I thought nineteen sounded too young for Shiv. Eventually Shiv seemed to break the awkwardness by asking me, “Are you good at counting money? I said, ‘Yeah sort of’.

17. I saw Shiv reach behind my seat and removed one big bundle of cash from a black backpack that was on the floor behind my seat. This cash was held together by two or three rubber bands. Shiv handed me the cash and I removed the rubber bands and started to count the money. In total I counted eight thousand and fifty dollars. I told this to Shiv and he said ‘There should only be eight thousand’. This money was made up of a heap of one hundred dollar notes and fifty dollar notes. I remember there was some twenty dollar. When I finished I put the elastic band back around the money and handed it back to Shiv. I saw Shiv put the money back into the black back pack behind my seat.”

14. The s 38 application was opposed, at least by Mr Bayliss and Mr Luo. Counsel for Mr Bayliss submitted that the witness’s drug use was such that “it cannot be said that what is recorded in this statement is something which would be regarded as being accurate”. [10] This was said to be relevant to a determination under s 38(1)(b) of the Evidence Act which would permit cross-examination about:

“…a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence.”

10. T, 24/09/20, p 976.

15. Mr Webb had earlier objected to leave under s 38 when the s 32 application was being canvassed: [11]

“HIS HONOUR: Mr Webb?

WEBB: The application is opposed, your Honour. It is opposed because the witness has indicated that her memory of events now is no better than her memory of events, as I understood, the question at the time of making the statement, that time being 28 June 2017.

It is therefore, I submit, not something relevant to s 32, and adopt the learned prosecutor's submission in that regard, but if the memory is no better now than at the time of making the statement, and possibly no better than the time when these things may have occurred for her to comment upon, then it is submitted that the Crown would need to establish that there is some memory which is able to be referred to in the course of the s 38 application succeeding.

HIS HONOUR: You said 38, you mean 32?

WEBB: I meant 38. I understood the learned Crown to be making a s 38 application.

HIS HONOUR: He may have gone back to 32.

WEBB: I won't be heard further then, your Honour.

HIS HONOUR: You don't oppose the s 32 application?

WEBB: The 32, no, I don't oppose the 32, my apologies.”

11. In fairness to counsel, the Prosecutor essentially made both applications at once.

16. The Prosecutor submitted that the application could be granted on the basis that the witness’s evidence was “unfavourable” (s 38(1)(a)) and that she had made a “prior inconsistent statement” (s 38(1)(c)).

16. I was not satisfied that, up to that point, the witness’s evidence was unfavourable in spite of the observations by Gaudron J in Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 at [44]. Further, I found it unnecessary to determine whether it was appropriate to allow cross-examination “about whether the witness [had] … made a prior inconsistent statement”. However, based partially on the contents of the statement, I was satisfied that the Prosecutor should have leave to cross-examine about matters which the statement showed she may reasonably have been expected to know about and whether she was making a genuine attempt to give evidence. That conclusion was reached by reference to the evidence given by the witness to that point, my observations of her demeanour (including her pre-occupation with the men seated in the dock), the contents of her statement, and the following matters relevant under s 192:

1. Granting leave would probably, although not necessarily, add to the length of the trial. However, it would not do so “unduly”.

2. There would be no relevant unfairness to the accused men or to the witness. The jury would observe the evidence unfold and the accused would retain the right to cross-examine after the Prosecutor had done so. There would no doubt be directions given about the potential unreliability of the evidence as hearsay, assuming the statement was not adopted.

3. The evidence was important in each case and it is potentially critical to the prosecution case against Mr Bayliss.

4. The serious nature of the proceedings was such that the prosecution should be permitted to explore the matters asserted in the statement, including by cross-examination of its own witness who appears to be unco-operative.

5. The situation could not be cured by adjournment or any other orders or directions.

18. While no notice had been given of the intention of the Prosecutor to cross-examine his own witness, he was unaware of the difficulties the witness would pose until she commenced giving evidence: s 38(6)(a). It was simply not known whether, and to what extent, Ms Sellers would be questioned by other parties: s 38(6)(b). However, each accused had a right to cross-examine and there was a prospect, given Ms Sellers’ apparent reluctance to co-operate with the Prosecutor, that they might have done so with considerable forensic effect. No counsel opposing the grant of leave raised any submission under s 38(6).

19. For those reasons, I granted leave under s 38(1)(b) but not, at that stage, under s 38(1)(a) or (c) although I indicated the Prosecutor could revisit those issues later in the evidence if necessary. [12]

    12. T, 24/09/20, p 979.

POST SCRIPT

20. The scope of the grant of leave was subject to argument, and inconsistent submissions, in the next few days of the trial. [13] The issue will be canvassed in a subsequent judgment concerning an application to limit the evidence given by Ms Sellers as to what she said in her statement. [14]

    13. T, 28/09/20, pp 1096-1119.

    14. See R v Al Batat & Ors (No 25) [2020] NSWSC 1388.

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Endnotes

Amendments

08 October 2020 - Fixed a typographical error in the footnotes.

23 February 2021 - Amended to include relevant case citation at footnote 14.

Decision last updated: 23 February 2021