R v Al Batat (No 24) - [2020] NSWSC 1387

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 24) [2020] NSWSC 1387
Hearing dates: 25 September 2020
Date of orders: 25 September 2020
Decision date: 13 October 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Leave granted to the Prosecutor to re-open examination in chief of the witness Martina Sellers (a pseudonym).

Catchwords:
CRIMINAL LAW - evidence - not a very good witness - misunderstanding between counsel - video of identification procedure not led in chief - Prosecutor believed identification not in issue - sought to lead evidence to bolster credibility of witness - unpersuasive application - where misunderstanding apparent in the course of argument - identification evidence important - leave granted

Legislation Cited:
Evidence Act 1995 (NSW), ss 26, 192

Cases Cited:
R v Al Batat & Ors (No 20) [2020] NSWSC 1319

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

On the morning of 25 September 2020, part way through the cross-examination of the witness Martina Sellers (a pseudonym), the Prosecutor made an application for leave to reopen examination in chief and to tender a video of a photographic identification procedure during which Ms Sellers identified the accused Mr Luo as one of the men present at premises in Burwood where, according to the prosecution, guns were supplied by Mr Bayliss to Messrs Lui, Luo and Fan. After short submissions from the parties, I granted leave and allowed the Prosecutor to re-open his evidence in chief. The reasons I gave leave did not coincide with the original reason the Prosecutor advanced for seeking it. These are my reasons for allowing the Prosecutor to re-open the examination in chief.
Ms Sellers in an important witness in the case. She is the only witness expected to give direct evidence of what the prosecution alleges is the supply of guns by Mr Bayliss. The prosecution alleges the guns were used in a murder and attempted murder later that day. The prosecution alleges that Messrs Luo, Liu and Fan were all present inside the apartment when this transaction occurred.
Ms Sellers made an induced statement to police on 29 June 2017 (MFI 24). She provided a detailed account of the events leading up to and including the meeting at Mr Liu’s apartment in Burwood on 1 February 2017. She described counting money in the car on the way down from the Central Coast and Mr Bayliss having…

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 24)

Details

AGLC: R v Al Batat (No 24) [2020] NSWSC 1387
Case: [2020] NSWSC 1387
Decision Date: 13 October 2020

CaseChat Overview and Summary

In the case of R v Al Batat, the defendant faced charges that required the court to consider the credibility and reliability of identification evidence. The matter was heard in the Supreme Court of Victoria, where the defendant contested the admissibility of certain evidence related to an identification procedure. The central issue was whether the trial judge should have allowed the prosecution to introduce video evidence of the identification procedure, which was not led during the prosecution's initial case.

The court was tasked with determining whether the prosecution's failure to lead the video evidence during the main case was a result of a misunderstanding between counsel and whether this justified allowing the evidence at a later stage. The defendant argued that the prosecution's oversight was not an honest mistake but rather a deliberate strategy to avoid scrutinising the witness's credibility. The court had to weigh the importance of the identification evidence against the potential prejudice to the defendant caused by the late introduction of the video.

The Supreme Court found that the misunderstanding between counsel was apparent during the argument and that the identification evidence was crucial to the case. Despite the late introduction of the video evidence, the court concluded that allowing it was necessary to ensure a fair trial. Consequently, the court granted leave for the prosecution to lead the video evidence. The decision emphasised the importance of clear communication between counsel and the need to maintain the integrity of the identification process.

Orders