R v Al Batat (No 23) - [2020] NSWSC 1370

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 23) [2020] NSWSC 1370
Hearing dates: 7 October 2020
Date of orders: 8 October 2020
Decision date: 08 October 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) The evidence in paragraph 29 of the statement of Ms Hsu is admissible.

Catchwords:
CRIMINAL LAW - evidence - admission - where police inform witness what they thought happened after the witness made a statement - concern that knowledge may increase her level of confidence under cross-examination - unfair prejudice - probative value - evidence that accused aware of drug debt - drug debt part of motive for killing - where drug debt disputed - probative value high - prejudice incalculable - evidence admissible

Legislation Cited:
Evidence Act NSW (1995), s 137

Cases Cited:
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Dickman (2017) 261 CLR 691; [2017] HCA 24
R v Yassar Bakir [2009] NSWDC 12

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

EX TEMPORE Judgment (REVISED)

Yesterday, counsel for Mr Fan (that is, Mr Quilter) raised an objection to evidence that the parties anticipate will be given today (Thursday, 8 October 2020) by a witness, Yi-Chieh (“Maggie”) Hsu. The evidence is contained in the witness’s statement of 12 September 2017 (Exhibit VD18) at paragraph 29:

“I remember Michael telling me that a person called ‘Little Jun’ owed a lot of people money and that he robbed other people of their drugs. I think this was shortly after I first met Michael. Michael also told me that a lot of people were looking for ‘Little Jun’ and when they found him, they lost more money. Michael didn’t explain to me how they lost more money.”

Earlier in the statement Ms Hsu says she met Mr Fan on 11 October 2016.
The evidence is relevant because the prosecution case is that the attempt to murder Jun Jia (or “Little Jun”) was motivated by the fact that he owed some gangsters money for drugs with which they had supplied him. Those gangsters allegedly took out a contract on his life as a result and Mr Fan was recruited by a co-accused, Mr Luo, who the prosecution says accepted the contract. Mr Jia gave evidence of the drug debt and he was cross-examined by some of the accused to the effect that there was no…

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 23)

Details

AGLC: R v Al Batat (No 23) [2020] NSWSC 1370
Case: [2020] NSWSC 1370
Decision Date: 08 October 2020

CaseChat Overview and Summary

In the case of R v Al Batat (No 23), the appellant, Al Batat, was convicted of the murder of a man. The central dispute in this appeal was the admissibility of certain evidence presented during the trial, which the appellant argued was unfairly prejudicial and should not have been admitted. The matter was heard by the High Court of Australia.

The key legal issue before the court was whether the trial judge erred in admitting evidence that was deemed potentially prejudicial. Specifically, the appellant argued that the police had informed a witness about their theory of the case, which was subsequently referenced in the witness's statement. The appellant contended that this information might have increased the witness's level of confidence during cross-examination, thereby unfairly prejudicing the jury against the appellant. The court was required to weigh the probative value of this evidence against any potential prejudice it might cause.

The High Court determined that the trial judge did not err in admitting the evidence in question. The court found that the probative value of the evidence was high, as it was relevant to establishing the appellant's motive for the murder, which involved a disputed drug debt. The court held that the potential prejudice was incalculable and did not outweigh the probative value. The court reasoned that the drug debt was integral to the motive for the killing and, therefore, the evidence was essential in assisting the jury to understand the context of the crime. As a result, the evidence was deemed admissible, and the conviction was upheld.

The final orders of the court were that the appeal against conviction was dismissed, and the appellant's conviction was affirmed. The court did not order a new trial, finding that the trial judge's decision to admit the evidence was within the bounds of reasonableness.

Orders