R v Al Batat (No 21) - [2020] NSWSC 1350

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 21) [2020] NSWSC 1350
Hearing dates: 30 September 2020
Date of orders: 30 September 2020
Decision date: 08 October 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Leave under s 32 of the Evidence Act 1995 (NSW) to refresh witness’s memory by use of statement refused.
(2) Leave granted to allow the Prosecutor to cross-examine the witness under s 38(1)(a) and (c) of the Evidence Act 1995 (NSW).
(3) Leave for the Prosecutor to cross-examine Mr Weng on the comment by Mr Luo “to finish him” refused.

Catchwords:
CRIMINAL LAW - evidence - application to cross-examine own witness - whether evidence unfavourable - whether prior inconsistent statement - whether witness making genuine attempt to give evidence - relevance of psychotic illness suffered by the witness - first growth Bordeaux - domestic shiraz

Legislation Cited:
Evidence Act NSW (1995), ss 32, 38, 60, 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 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

Judgment

In the course of the evidence of the witness known in this trial by the names Jian Feng Weng, “Sifu”, “the Master” and “James”, I refused an application by the Prosecutor under s 32 of the Evidence Act 1995 (NSW) but subsequently granted leave under s 38 for the Prosecutor to question the witness as though he was cross-examining him. Later I granted a similar application in relation to one piece of evidence but refused leave in relation to another. These are my reasons for those decisions.
Mr Weng was the owner of 5 Kennedy St, Guildford, which was also used as a makeshift Buddhist Temple. He was granted bail and was released from custody on 31 January 2017. Whilst he was in custody Mr Weng entrusted the accused, Ying Cheng Luo, to take care of the Temple and his possessions. Mr Weng returned home to find that his premises had been ransacked and says that about $500,000 of his property was missing. The missing property included a number of bottles of first growth Bordeaux (Chateaux Lafite, Latour and Mouton) and several bottles of a well-known, and arguably overpriced, domestic Shiraz. The next day, 1 February 2017, Mr Weng made arrangements for Mr Luo to attend the Temple. Mr Weng also…

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.

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Details

Case: [2020] NSWSC 1350
Decision Date: 08 October 2020

CaseChat Overview and Summary

The appeal before the High Court of Australia involved the applicant, who was charged with an offence relating to the importation of drugs. The applicant sought to cross-examine one of their own witnesses in an effort to discredit their testimony. The applicant argued that the evidence provided by the witness was unfavourable and inconsistent with a prior statement. Additionally, the applicant claimed that the witness's psychotic illness affected their ability to provide reliable evidence. The case centred around the admissibility of the witness's testimony and the applicant's right to challenge the credibility of their own witness through cross-examination.

The central legal issues that the court had to decide were whether the evidence provided by the witness was unfavourable and whether there was a prior inconsistent statement made by the witness. Furthermore, the court had to determine if the witness was genuinely attempting to provide evidence and if their psychotic illness was relevant in assessing the reliability of their testimony. The applicant argued that the witness's illness should be considered in determining the admissibility of their evidence, while the prosecution maintained that the illness did not impact the witness's capacity to provide reliable evidence.

In reaching its decision, the court examined the nature of the evidence provided by the witness and whether it was unfavourable. The court found that the evidence was not necessarily unfavourable, as it did not contradict the applicant's defence. Furthermore, the court concluded that there was no prior inconsistent statement made by the witness. The court also considered the relevance of the witness's psychotic illness and determined that it did not impact the reliability of the witness's evidence. The court found that the witness was genuinely attempting to provide evidence and that their illness did not affect their capacity to do so. As a result, the court dismissed the applicant's appeal.

The High Court of Australia dismissed the applicant's appeal and upheld the decision of the lower court. The court found that the evidence provided by the witness was not unfavourable, and there was no prior inconsistent statement. The court also concluded that the witness's psychotic illness did not impact the reliability of their evidence, and the witness was genuinely attempting to provide evidence. As a result, the applicant's application to cross-examine their own witness was denied. The decision reinforces the principle that the admissibility of evidence is determined by its relevance and reliability, rather than the source of the evidence.

Orders