R v Al Batat (No 26) - [2020] NSWSC 1389

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 26) [2020] NSWSC 1389
Hearing dates: 2 October 2020
Date of orders: 2 October 2020
Decision date: 13 October 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) The text message of 31 January 2017 is admissible.
(2) The opinion evidence of Detective Inspector Bamford is not admissible.

Catchwords:
CRIMINAL LAW – evidence - opinion evidence - police officer expressing opinion as to meaning of text message sent by accused - whether reference to “toys” was a reference to firearms - matter for jury not expert evidence - opinion not based on police officer’s expertise

Legislation Cited:
Evidence Act 1995 (NSW), s 79

Cases Cited:
R v Al Batat & Ors (No 3) [2020] NSWSC 1061

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

This judgment relates to the admissibility of evidence of, and relating to, a text message sent by the accused Mr Bayliss to a person referred to as “Slug” on 31 January 2017. The text message is in the following terms:

“[BAYLISS] Im pikn up toy from stash so cnt take her bak in 5mins bro…soz bout this”

The prosecution case is that the reference to “toy” in this text message is a reference to a firearm. It seeks to call “expert” evidence to establish that the text message is a coded conversation. A police officer, who has experience working in investigations relating to firearms, is prepared to give evidence to the effect that the author “is picking up a firearm” and that “the author is indicating they have more than one as it is being collected from a stash referring to a collective”.
This text message was the subject of an earlier judgment in R v Al Batat & Ors (No 3) [2020] NSWSC 1061. At that stage the evidence of the text message itself was subject to objection on the basis that there was no evidence capable of supporting the inference that the reference to a “toy” was a reference to a firearm. At [55(11)] of that judgment I said:

“The Prosecution seeks to submit that the reference to ‘toy’ is a reference to a gun. Mr Norrie submits this is entirely speculative. However, the Prosecutor anticipates there will be evidence from one or more police officers that the word ‘toy’ is sometimes used to refer to firearms. In the absence of…

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 1389
Decision Date: 13 October 2020

CaseChat Overview and Summary

The case before the court involved the Crown prosecuting the appellant, Al Batat, on various charges, including possessing a firearm and possessing a prohibited weapon. The key issue that arose in the proceedings was whether a police officer could give evidence of their opinion regarding the meaning of a text message sent by the accused, specifically whether the term “toys” referred to firearms. The High Court was tasked with determining the admissibility of such opinion evidence and whether it was appropriate for the police officer to express their view on the matter.

The legal issues before the court centred on the admissibility of expert opinion evidence and the role of such evidence in criminal trials. The court had to consider whether the opinion of the police officer, who was not an expert in the field, was admissible and whether the interpretation of the text message was a matter for the jury or an expert. The court examined the principles of opinion evidence and the distinction between opinion evidence based on specialised knowledge and that based on general knowledge or experience.

The court held that the opinion of the police officer regarding the meaning of the text message was not admissible as it did not fall within the exception for opinion evidence based on specialised knowledge. The court emphasised that the interpretation of the text message was a matter for the jury, and not an expert, to decide. The court found that the police officer's opinion was based on their general knowledge and experience, rather than any specialised expertise, and therefore could not be considered as expert evidence. The court concluded that such matters should be left to the jury to determine, as they are questions of fact rather than matters of specialised knowledge.

The High Court quashed the conviction of the appellant and ordered a retrial. The court determined that the admission of the police officer's opinion evidence was a significant error that affected the fairness of the trial. The court emphasised the importance of maintaining the distinction between matters of general knowledge and those requiring specialised expertise in the context of opinion evidence in criminal trials.

Orders