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

1. 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.

2. I heard submissions on the issue on Monday, 28 September 2020. Four of the accused submitted that the things Ms Sellers said in her statement concerning the alleged supply of guns by Mr Bayliss should be limited under s 136 of the Evidence Act so that it could be used only as evidence going to her credibility. Based on the submissions provided and the evidence adduced to that point in the trial, I rejected the application to limit the use of the evidence and declined to make any order under s 136 of the Evidence Act. These are my reasons for that decision.

3. Ms Sellers’ evidence is crucial in the case of Mr Bayliss and is significant in the circumstantial case against Messrs Liu, Luo, Fan and Al Batat. There is no dispute that Ms Sellers travelled with Mr Bayliss to Mr Liu’s apartment in Burwood on 1 February 2017. She was present when there was a meeting or transaction between Mr Bayliss and Messrs Liu, Luo and Fan. The prosecution alleges that during this meeting Mr Bayliss supplied firearms to Messrs Liu, Luo and Fan (counts 2 and 3 on the indictment). It is agreed that during the same meeting, the latter three men supplied Mr Bayliss with a quantity of methylamphetamine. It is alleged that the firearms were used in the murder of Qin Wu and the attempted murder of Jun Jia later that same day at premises in Guildford.

4. In an induced statement to police dated 29 June 2017 (MFI 24), Ms Sellers recounted the events of 1 February 2017. Her statement details the events leading up to and including the meeting at the apartment in Burwood. Ms Sellers told police that Mr Bayliss had a gun or guns in the car on the trip to Burwood, took the firearms with him into Mr Liu’s apartment and supplied the weapons to Messrs Liu, Luo and Fan in exchange for an undisclosed quantity of methylamphetamine. Ms Sellers also said in her statement that Mr Bayliss asked her to count a quantity of cash when they were in the car together and that Mr Bayliss later handed the counted cash to one of the men at the apartment. The precise details of the transaction in terms of the exchange of money, drugs and guns are unclear.

5. During the course of her evidence, Ms Sellers adopted certain parts of her statement to police but not others. She said that her memory of the events was poor. It may be that she was not trying very hard, or was deliberately avoiding giving evidence of the alleged gun supply. When the contents of her statement were put to her, she adopted those parts relating to the supply of drugs at the Burwood apartment. As it turns out, each of the relevant four accused men have indicated that they admit the supply of drugs. However, while Ms Sellers agreed that she referred to guns in her statement to police, she did not adopt those parts of her statement in the witness box. Ms Sellers denied that the things she had said about the guns (as recorded in her induced statement) were true or that they accorded with her actual memory of the events.

6. Because Ms Sellers did not adopt the evidence concerning the supply of guns, there was no direct evidence going to that issue. The evidence of what she said in her statement about the guns is hearsay evidence. Because the evidence was admissible for a non-hearsay purpose – that is, to cross-examine pursuant to leave under s 38 and to prove a prior inconsistent statement under s 43(1) – s 60 of the Evidence Act provides that it is admissible for the “hearsay purpose”, that is, in proof of the supply of guns. Section 60 made a substantial change to the common law: see, for example, Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 at [28]; Adam v The Queen (2001) 207 CLR 96 at 100; [2001] HCA 57 at [19].

7. It was in this context that the application to limit the use of the evidence pursuant to s 136 of the Evidence Act was made. The application was that the evidence be limited so that it could only be used in an assessment of Ms Sellers’ credibility.

8. Section 136 of the Evidence Act is in the following terms:

General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might—

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing

9. In spite of the legal complexity of the issue, and its potential importance in the case, the application was made initially in a somewhat peremptory manner. [2] I indicated the Court would be assisted by submissions on the application of ss 60 and 136 of the Evidence Act, the High Court decision in Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 and any relevant cases decided since. [3]

   2. See for example T, 25/09/2020, pp 1043-1044, 1064-1065.

   3. T, 25/09/2020, p 1065.

10. When the application was argued formally, the parties proceeded correctly on the assumption that the evidence was captured by the operation of the exception to the hearsay rule in s 60(1) of the Evidence Act:

Exception: evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)).

Note: Subsection (2) was inserted as a response to the decision of the    High Court of Australia in Lee v The Queen (1998) 195 CLR 594.

(3) However, this section does not apply in a criminal proceeding to evidence of an admission.

Note: The admission might still be admissible under section 81 as an    exception to the hearsay rule if it is "first-hand" hearsay: see section    82.

11. The prosecution’s position was that the evidence about the guns in Ms Sellers’ out-of-court statement was “available as evidence of the truth” of the representations made in the induced statement. [4] It was submitted that limiting the use of the evidence pursuant to s 136 would essentially “subvert the intention of the legislature” and defeat the purpose of s 60. [5] Reliance was placed on some of the things said by Gleeson CJ and Hayne J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37. [6] However, that decision related to complaint evidence in a sexual case that was admissible under s 66 and Gleeson CJ and Hayne J specifically said that the “requirements of justice” may require limitation in some cases even for evidence admissible under that section. Further, McHugh J said at [94] (with citations omitted and my emphasis):

    4. T, 25/09/2020, p 1065.

    5. T, 28/09/2020, p 1125.

    6. See [40] (Gleeson CJ and Hayne J) and [90] - [96] (McHugh J).

“As Hunt CJ at CL and Bruce J pointed out in R v BD, it is artificial and wrong to admit evidence pursuant to s 66(2) and then limit the use of the evidence to credibility issues by exercising the power conferred by s 136. In the ordinary case, a warning under s 165 should be sufficient to alert the jury to the dangers of hearsay evidence. For that reason, s 136 should only be invoked in cases where the danger could not be cured by such a warning. No doubt the judge is more likely to limit the evidence to credibility issues when it has been admitted by way of s 108(3)(b) rather than by way of an exception to the hearsay rule. It is a sine qua non for admission via s 108(3)(b) that it is only relevant to credibility - s 102 of the Act. Nevertheless, directions under s 136 should not be made as a matter of course.”

12. Counsel for Mr Luo mounted an argument that the Prosecutor had “exceeded” the grant of leave under s 38 of the Evidence Act and, implicitly, suggested that this should result in the limitation of the evidence under s 136. Mr Webb submitted that the Prosecutor questioned Ms Sellers on topics falling outside the scope of s 38(1)(b), that is matters “…which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence…” The complaint seemed to be that the Prosecutor was cross-examining on the prior inconsistent statement.

13. There was no substance to that submission. For one thing, the Prosecutor’s cross-examination was within the scope of leave granted under s 38(1)(b). The reason that it may reasonably be supposed that Ms Sellers had knowledge of the gun supply is because she was present at the time it allegedly occurred and because she gave a detailed account of it in her statement. While the grant of leave was not under s 38(1)(c), it was inevitable that the cross-examination would make reference to the matters contained in her statement. Further, no objection was taken to the Prosecutor’s cross-examination of the witness on her prior inconsistent statements. Those parts of the statement that were adopted by the witness contained factual assertions that accorded with the defence case – that is, that there was a supply of drugs by Messrs Liu, Luo and Fan to Mr Bayliss. Unsurprisingly, no objection was taken to this evidence being adduced as it was consistent with the case being conducted by the accused.

14. The remainder of Mr Luo’s submissions were difficult to understand, and were at times almost impenetrable. [7] As best as I could make out, there was a complaint that the Prosecutor was bolstering Ms Sellers’ credibility in relation to the drug transaction while discrediting her in relation to her purported lack of knowledge or memory of the gun transaction. I think it was being suggested that the jury would find it confusing to be told it could use the evidence in proof of the gun transaction when her credibility was being attacked on that issue, while at the same time being allowed to use the evidence of the drug supply when that evidence was consistent with her statement. If this is the submission that was being made, it is contrary to the fundamental proposition that a jury may accept part of what a witness says while rejecting other parts. Directing the jury in relation to the difference between the evidence she adopted or gave in court (which is direct evidence) and the evidence that only came in through the statement (which is hearsay evidence) is simple. Further, a strong warning under s 165 of the Evidence Act would emphasise that difference and ensure the jury treated the material that she did not adopt with caution.

    7. See T, 28/09/2020, pp 1096-1109, 1120-1123.

15. I was unable to discern any merit in Mr Luo’s submissions on the issue.

16. Counsel for Mr Fan provided helpful submissions that posited a legitimate basis upon which a direction limiting the use of the evidence might have been based. [8] His submission was based on parts of Ms Sellers’ evidence concerning the circumstances in which her statement was made and the fact that some words and locations in the statement seemed to have a source other than the witness herself. Mr Quilter referred to the fact that the taking of the statement was not recorded on video. He also submitted that the reference to “Dean Street” was striking given that the witness clearly had no knowledge of that street or its name. One possible inference is that the street name was provided by police. Mr Quilter also relied on evidence that Ms Sellers felt under pressure to provide a statement. She gave evidence that she was due to be released from custody two days after giving her statement and that being released was her priority at the time. [9] Ms Sellers said that she was concerned about being charged with offences and said the word “accessory” was used by the police recording her induced statement. [10] Mr Quilter relied on the fact that it had only recently been disclosed that the police had a conversation with the witness in the days before the statement was taken. This disclosure came late and was devoid of detail.

    8. T, 28/09/2020, pp 1110 - 1115.

    9. T, 25/09/2020, p 1074.

    10. T, 25/09/2020, p 1075.

17. The sum of these and other matters led Mr Quilter to submit that there was unfair prejudice in allowing the evidence to be used for a hearsay purpose, and that accordingly, the evidence should be limited to a “credibility purpose”.

18. Ms Carroll, on behalf of Mr Liu, made similar submissions and focussed on the fact that the material in the brief did not provide any insight into how the statement from Ms Sellers was taken. [11] This dove-tailed with Mr Quilter’s complaint that there was late and incomplete disclosure as to the circumstances in which Ms Sellers’ statement came to be made.

    11. T, 28/09/2020, p 1116.

19. Mr Bayliss had the largest interest in the issue and had submitted on the previous Friday that the decision on limitation should be made before the trial continued. [12] Counsel adopted the submissions made on behalf of the other accused. [13]

20. Senior Counsel for Mr Al Batat did not oppose the making of an order limiting the use of the evidence. However, she indicated there were some respects in relation to which she sought to use the contents of the statement as evidence of the truth of the assertions contained therein. These matters were somewhat peripheral – involving a plan for some of the group to go out for dinner in the city – and need not be considered unless there is a direction otherwise limiting the evidence.

21. I have taken into account the things said by the High Court in Papakosmas v The Queen which I have set out at [11]. McHugh J made helpful observations on these and related issues from [90]-[97]. While I accept that a direction limiting the evidence ought not to be made as a matter of course, the circumstances are very different when the evidence comes in as credibility evidence (or in consequence of a grant of leave under s 38) and cases where it is admissible pursuant to ss 65 or 66 of the Evidence Act.

22. I have also considered the fact that s 60 of the Evidence Act was designed to simplify the law and was calculated to effect significant change in the common law of evidence. This has been made clear by the High Court in Lee v the Queen and Adam v The Queen.

23. In Schanker v The Queen [2018] VSCA 94 the Court said at [108]-[110]:

    12. T, 25/09/2020, p 1089.

    13. T, 28/09/2020, pp 1117-1119.

1. As to whether the discretion under s 136 miscarried generally, a court is entitled to consider the extent to which the dangers associated with the hearsay use could be, or were, adequately mitigated by direction. Here, his Honour gave a strong direction to make the jury understand that the evidence had been untested by cross-examination, came from an intrinsically unreliable source, and therefore had to be approached with caution. In our opinion, the strong direction effectively endorsed, with the full weight of judicial office, defence counsel’s arguments concerning the unreliability of Seleman’s assertions. These directions plainly exposed the issues which the jury had to consider in determining what weight should be given to this hearsay evidence. The direction showed that cross-examination of Seleman in relation to his assertions was not necessary to meaningfully uncover its potential unreliability. There was other evidence in the case against which the jury could weigh these assertions (i.e. a body of evidence which implicated Seleman). The final addresses show that the defence was able to satisfactorily address the infirmities of this evidence through argument. We are left with no doubt that the jury was capable of understanding the issues. Any danger of misuse or confusion was, in our view, acceptably addressed by the judge’s direction.

2. Of course the discretion under s136 is also affected by the fact that the use of the evidence is to be limited rather than excluded entirely. There are always risks that a jury may be incapable of comprehending (and thus applying) what might be seen to be a two-edged direction on permissible and prohibited use. The policy which underpins s 60 recognizes the notorious conceptual difficulties faced by tribunals of fact, especially by juries, in being told that they may use the evidence for a non-hearsay purpose, but not for a hearsay purpose.

3. In our view, the comprehensive direction given by the trial judge as to the limitations of this hearsay use is likely to have afforded the applicant with at least as much protection from the dangers of misuse as might have been provided by a blunt prohibition on hearsay use altogether. By contrast, the risk of confusion arising out of a straight prohibition direction was especially pronounced in this case. One of the issues in this trial was the falsity (and conversely the veracity) of Seleman’s assertions of ignorance as to the packages and their contents. Just how a jury could sensibly have evaluated the falsity of the assertions, while at the same time being restrained from acting upon their veracity, is a little difficult to comprehend.”

   24. In reaching my conclusion on the application, I considered the maters referred to in Schanker and, in particular, the directions that could be provided to the jury to reduce any potential for prejudice or misuse of the evidence.

   25. I also considered the circumstances in which the statement was made insofar as they are known. Ms Sellers’ evidence on this issue was vague and unsatisfactory. I am told that there has been inadequate disclosure of the circumstances in which the statement came into existence. It may be that further evidence will emerge either on the voir dire or before the jury when the relevant police officers give evidence. None of the parties sought to examine the police officers during the course of the application to limit the evidence.

   26. Ms Sellers said that she was due to be released from custody in the coming days and was “called out”. She assumed that it was to take a call from Centrelink concerning her release. As it turned out there were police officers present who wanted to talk to her about her involvement and knowledge of the events giving rise to the murder of Qin Wu. Ms Sellers could not recall whether there were any meetings or communications before that day. Counsel for Mr Luo described this as a “Shanghai surprise”, a phrase that was (perhaps) unwitting, certainly unfortunate and inapposite to the prevailing circumstances of the police interview with Ms Sellers. It appears from the belated disclosure referred to by Mr Quilter that there was at least one meeting or conversation with police before the statement was taken. The contents of that conversation are not known or before the Court.

   27. I took into account the uncertainty around the taking of the statement and Ms Sellers’ fears and apprehensions that may have caused her to provide a version that she believed the police wanted to hear. I have also considered the suspicious circumstance that words and place names were used that appeared to be outside of Ms Sellers’ knowledge.

   28. I formed the view that these matters went to the reliability of the evidence rather than to its admissibility under s 60 or the limitation issue under ss 136 and 192. In advance of making this ruling, I provided the jury with a direction concerning the danger of hearsay evidence:

“HIS HONOUR: Members of the jury, that will do us for this week. We will be resuming the trial on Monday at quarter to 10, but before you go today, I want to give you some directions about the evidence you have been listening to over the last two days.

Ms Sellers gave evidence before you that she had made a statement and signed it in the company of police on 29 June 2017. In her evidence, Ms Sellers, agreed that some parts of her statement relating to the supply of drugs in the apartment reflected her memory of what she saw and heard happen at Burwood on that date, 1 February 2017.

It seems, from the examination undertaken by the Prosecutor, that she also said things about seeing guns and hearing conversation about guns in the apartment at Burwood and seeing a gun, or perhaps guns, in the car on the way to the apartment in Burwood.

In her evidence before you in the courtroom, Ms Sellers agreed that she had referred to guns in her statement, but she did not agree that she actually saw any guns, or observed anything to do with guns on the day in question. Throughout her evidence she did not agree that the things she had said, apparently, about guns to the police or in her statement were a true reflection of her memory of what she said about guns.

To put it shortly, she has given no evidence in the courtroom about seeing any guns or hearing any of the accused men talking about guns on 1 February 2017 at Burwood, or in the car trip on the way there. But she has agreed that she said things about that in the statement.

Now, this gives rise to a question of law, as to how the evidence of what she said in the statement can be used by you as the jury in the trial. It is a question of law that I will have to hear argument about. The barristers have told me there is a dispute as to how the evidence might be used and, from what I know of that dispute, it is going to take a little bit of time to resolve. I will at some stage, hopefully when it is convenient for you and you won't be here at the court, have the argument and I will hear all of those arguments, consider the matter and come to a conclusion as to how the evidence can and cannot be used. Eventually I will explain to you just how that evidence of what she apparently said in the statement can be used in relation to the charges faced by the men.

But, however it can be used, I will also be giving you a direction that this is the kind of evidence that the law recognises historically can be unreliable evidence. That's because, to put a label on it, it is hearsay evidence. It is not something she said to you in the courtroom, it is something she said outside of the courtroom, outside of the presence of the parties. We have spoken about that before in a different context. There are many reasons and some of them maybe obvious to you, that evidence of this kind can be unreliable, and I'm just going to give you some of them now before you go home for the weekend.

The first is, as I have already said, none of the parties were present when this statement was taken. It is not exactly clear how the statement was taken and what particular words were used by the witness herself. This makes it very difficult for the accused men and their lawyers to challenge and test the evidence.

Also, some of the details in the statement on the cross examination you have heard, particularly by Mr Webb and Mr Norrie, seem to be things that the witness knew nothing about. For example, there is a reference to a street name in Burwood that she simply seemed to know nothing about, didn't know the street and had barely every been to Burwood, if at all. There was that examination and now you have heard re examination about the colour of the Queensland football team and whether she knew that word, but, certainly, the use of the word ‘immune’, as demonstrated in Mr Norrie's examination, did not seem to be a usage that you would expect of this witness or that she says she was familiar with. How the street name in Burwood or the word immune came to find its way into this statement is not clear and she can't remember or tell you about it.

She gave evidence this morning that she felt under pressure and that the police had spoken to her about charges. She mentioned the word ‘accessory’, she said that she was about to be released from prison and was mostly concerned about just getting out. The witness said repeatedly that she was on drugs at the time she made the statement. At one stage this morning she said that she didn't even read the statement before she signed it. Of course, going back to the very beginning, her actual evidence is that she can't remember anything about guns when she tries to give evidence before you now.

Now, those are just a few things that you will bear in mind in assessing this evidence when you come to the end of the trial, remembering you have to consider her evidence in the light of all of the other evidence in the case. But at this stage I haven't ruled on how the evidence can be used and when I do, I will be giving you, hopefully, clear directions as to that. Whatever decision I come to on that issue, I will be repeating the warning I have just given you and expanding upon it with the assistance of counsel as to why this evidence may be unreliable evidence.

I thought I should give you those directions before you break for the weekend, because you have been listening to Ms Sellers attentively for the last two days and no doubt her evidence will be fresh in your minds as you go home and think about the case over the weekend.” [14]

14. T, 25/09/2020, pp 1087-1088.

29. Counsel sought no further direction but that stance in no way diminishes the force or otherwise of the application that a direction be made limiting the use of the evidence. Further directions can, and will, be given in the summing up.

30. The matters that go to the reliability of the hearsay evidence will be easily understood by the jury and are amenable to judicial direction and warnings urging the jury to take great care before acting on the evidence of what Ms Sellers said in her statement. There is nothing complicated or confusing about approaching the evidence of the witness differently when it is disputed by the accused and when the witness herself does not adopt the things she said earlier.

31. I accept Mr Quilter’s submission that a limitation of the evidence is more likely when it comes in under s 60 than, say s 65 or s 66 of the Evidence Act. As I have said, that submission appears to accord with what McHugh J said in Papakosmas v The Queen. However, the circumstances prevailing here – on the evidence to this point in the trial – are insufficient to justify an order for limitation of the evidence.

32. All counsel submitted that s 192 of the Evidence Act applied because an order limiting the use of the evidence was a “judicial direction”. I acted on the joint position of the parties. In terms of the relevant considerations arising out of that section, I considered the following:

1. That making the direction would probably have reduced the length of the trial to some degree. However, failing to make the direction will not unduly add to the length of the trial. It may involve counsel cross-examining the police about the circumstances of the taking of the statement but that will not add very much to the length of the proceedings.

2. Any unfairness to the accused can be remedied by direction. The problems with Ms Sellers’ statement are patent and can be further explored with the police and emphasised in warnings and directions.

3. The evidence sought to be limited is important. It is critical to the prosecution case against Mr Bayliss and is significant in the circumstantial case against the other accused. What Ms Sellers said in her statement is the only evidence that there were weapons inside the Burwood apartment at the time of the drug supply.

4. The serious nature of the proceedings militates in favour of allowing the evidence to be used in the manner prescribed in s 60.

5. The jury will be provided with directions as to the use that can be made of the evidence, the fact that it is hearsay and not adopted by the witness, the potential unreliability of hearsay evidence generally, and the matters that may result in this particular evidence being unreliable.

33. Nothing in this judgment or in the ruling made on 28 September 2020 prevents any party from seeking a direction in relation to the evidence, including a direction limiting the use of the evidence, later in the trial. I note that some counsel, in particular Mr Quilter, submitted that the application was premature. So it may be the case that further consideration of the matter is required later in the trial. At this stage all the jury has been told is that they will receive directions as to permissible use of the evidence later in the trial along with the warning that the evidence may be unreliable which I have set out above at [27].

34. It is for those reasons that I refused the application under s 136 of the Evidence Act to limit the use of the evidence.

**********

Endnotes

Decision last updated: 25 November 2020