R v Al Batat (No 25) - [2020] NSWSC 1388

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 25) [2020] NSWSC 1388
Hearing dates: 25, 28 September 2020
Date of orders: 28 September 2020
Decision date: 13 October 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
The application to limit the use of Ms Sellers’ evidence pursuant to s 136 of the Evidence Act 1995 (NSW) is refused.

Catchwords:
CRIMINAL LAW - evidence - hearsay evidence - evidence contained in induced statement of witness - where witness does not adopt the statement - circumstances of making statement - late disclosure of information concerning police contact with witness - “Shanghai surprise” - inapposite description of what occurred - where statement contains words and locations not within the knowledge of the witness - where witness concerned she may be charged if she did not co-operate - reliability of evidence - whether unfair prejudice in allowing the statement to be used for a hearsay purpose

Legislation Cited:
Evidence Act 1995 (NSW), ss 32, 38, 60, 136, 165

Cases Cited:
Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57
Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Al Batat & Ors (No 20) [2020] NSWSC 1319
Schanker v The Queen [2018] VSCA 94

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 Monday, 28 September 2020, counsel for Mr Luo, Mr Bayliss, Mr Fan and Mr Liu (that is, Mr Webb, Mr Norrie, Mr Quilter and Ms Carroll) joined in an application to limit the use of the evidence of Martina Sellers (a pseudonym). The application was foreshadowed on Friday, 25 September 2020. [1] This application came after 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 as well as leave pursuant to s 38 of the Evidence Act allowing the Prosecutor to question the witness as though he was cross-examining her: see R v Al Batat & Ors (No 20) [2020] NSWSC 1319. Counsel for Mr Bayliss submitted the limitation issue should be determined before the trial continued because the admissibility of some of the evidence to be tendered by the prosecution turned on the foundation provided by Ms Sellers’ evidence.
1. Transcript (T), 25/09/2020, pp 1064-1066, 1089, 1091-1092.
I…

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 1388
Decision Date: 13 October 2020

CaseChat Overview and Summary

The case of R v Al Batat (No 25) involved the appellant, Al Batat, who was convicted of various offences including murder. The case revolved around the admissibility of a statement made by a witness, which was sought to be used as hearsay evidence against the appellant. The Supreme Court of Victoria heard the appeal against the conviction, focusing on the reliability of the statement and the circumstances under which it was made.

The central legal issue before the court was whether the statement made by the witness was admissible as evidence under the hearsay rule exceptions. The court needed to determine if the statement was sufficiently reliable to be admitted, particularly given that the witness did not adopt the statement as her own and there were concerns about the circumstances in which it was made. Additionally, the court had to consider whether there was an unfair prejudice in allowing the statement to be used for a hearsay purpose, especially in light of the late disclosure of information concerning police contact with the witness.

In ruling on these issues, the court emphasised that the witness had not adopted the statement, and there were concerns about the reliability of the information contained within it. The witness had expressed concerns about being charged if she did not cooperate with the police. The court found that the description of the events as a "Shanghai surprise" was inapt, as the circumstances did not fit this description accurately. Moreover, the statement contained words and locations that were not within the knowledge of the witness, further casting doubt on its reliability. Given these factors, the court concluded that the unfair prejudice to the appellant outweighed the probative value of the statement, and thus, it should not have been admitted as evidence.

Consequently, the Supreme Court of Victoria quashed the conviction and ordered a retrial, highlighting the importance of ensuring that evidence is both reliable and justly obtained before it is admitted in court.

Orders