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 LiRepresentation: Counsel:
Solicitors:
P Hogan (Crown)
B Rigg SC (Al Batat)
R Webb (Luo)
T Quilter (Fan)
N Carroll (Liu)
A Norrie (Bayliss)
D Carroll (Li)
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
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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…
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- Case
- [2020] NSWSC 1350
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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