R v Al Batat (No 27); NSW Commissioner of Police v Al Batat

[2020] NSWSC 1399

Supreme Court

New South Wales

Medium Neutral Citation:	R v Al Batat & Ors (No 27); NSW Commissioner of Police v Al Batat [2020] NSWSC 1399
Hearing dates:	15, 17, 18, September 2020 and 7 October 2020
Date of orders:	17 September 2020, 7 October 2020
Decision date:	13 October 2020
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	See paragraphs [4], [7], [9], [12]
Catchwords:	CRIMINAL LAW - evidence - public interest immunity - informant witness - closure of court - suppression orders - whether witness should be advised of orders - where witness gives misleading evidence in relation to material previously subject of claim for immunity - Commissioner asked to reconsider their position - parties provided with further information
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 7, 8, 10, 11, 12
Cases Cited:	R v Al Batat & Ors (No 13); NSW Commissioner of Police v Al Batat [2020] NSWSC 1152
Category:	Procedural and other rulings
Parties:	Regina Abdallah Hassan Al Batat Ying Cheng Luo Ian Fan Jaiyu Liu Jacob Blake Bayliss Nai An Li Commissioner of Police
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) J Emmett & R Bhalla (Commissioner of Police) 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) Crown Solicitor’s Office (Commissioner of Police)
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 the third day of the evidence of a witness referred to in this trial as Leonard Rivers (a pseudonym), counsel for the Commissioner of Police raised an objection to questions asked by counsel for Mr Luo (that is, Mr Webb) in cross-examination. The objection was based on the Commissioner’s claim of public interest immunity over certain parts of Mr Rivers’ statement and portions of documents produced by the Commissioner under a subpoena issued on behalf of Mr Al Batat. The issue was ventilated earlier in the trial and I upheld the claim of immunity over parts of the documents but not others: see R v Al Batat & Ors (No 13); NSW Commissioner of Police v Al Batat [2020] NSWSC 1152. In that judgment, I indicated that I may need to revisit my decision depending on the course of the trial and the evidence ultimately given by Mr Rivers. Once the objection was taken, the issue arose in various ways over the coming days. I made various decisions and this judgment sets out those decisions and the reasons I made them.

2. The following exchange led to the Commissioner’s objection:

“Q. Was your business the cocaine business?

A. Yes.

Q. Were you dealing with a couple of suppliers, as you say, constantly in respect of the provision of these drugs to your clientele?

A. Yes.

Q. Was it of assistance to you to have more than one supplier so as to ensure a steady flow of cocaine to your clientele?

A. Yes.

Q. And of course, Mr Rivers, over time, perhaps time which could be measured over a two-week period or a one-month period, you were in fact merchandising large quantities of cocaine, weren't you?

A. I guess, yes, you could say that.

Q. I say that, Mr Rivers, in the context that over a period of time, there is obviously a large amount of cocaine being moved through the pipe to the clients, agreed?

A. Yes.

Q. And, Mr Rivers, you must have thought, as an intelligent man, many times going forward from about 2012, that you were moving a lot of drugs and that you would not want to get caught for that amount or quantity of cocaine sales, would that be fair?

A. Ah, yes.

Q. And, being in the business, you knew, didn't you, that the law provides for harsh penalties for large drug supplies?

A. Yes.

Q. Now, Mr Rivers, who were your suppliers?

A. I don't know.” [1]

1. Transcript (T), 17/09/20, p 745.

3. Once the jury left the courtroom, counsel for the Commissioner sought time to take instructions. Through no fault of counsel, the cross-examination went very close to traversing matters in relation to which I had upheld the claim of privilege. [2] It was almost an inevitability this would happen for two reasons. First, the way in which the witness’s statement had been redacted gave rise to a strong inference that names had been removed and the earlier argument made it clear that counsel was particularly interested in Mr Rivers’ employment - legitimate and illegitimate - during the relevant period. That “employment” involved dealing in cocaine and then providing “logistical support” for a company that traded in mobile phones with “military grade” encryptions that made them difficult to intercept and trace. Second, at the time of the relevant events, the accused Mr Luo was in a relationship with Mr Rivers and the extent to which Mr Rivers may have disclosed details to his partner during the relationship was not known.

   2. See R v Al Batat & Ors (No 13); NSW Commissioner of Police v Al Batat [2020] NSWSC 1152.

4. In any event, the Commissioner took the view that the evidence was relevant and that, now that the issue was raised squarely in cross-examination, it was appropriate to revisit the balancing exercise that previously resulted in a decision not to disclose the material insofar as it was produced under subpoena. The Commissioner proposed an alternate course which was to close the court and make an interim suppression order. The Commissioner relied on an open and closed affidavit and exhibits thereto. [3] I was satisfied that the orders were necessary to protect the identity of Mr Rivers and to protect his safety.

   3. Exhibits VD14 and VD15.

5. An issue then arose as to whether Mr Rivers should be advised that there was a suppression order in place and that the Court was closed. Counsel for the Commissioner took the view that the witness should be so advised. However, counsel for Mr Luo objected to this course:

“WEBB: I object to the witness being advised about the suppression order or the closed court order. Those orders are made and have effect.

HIS HONOUR: Did you say you object?

WEBB: I do, because those orders are made and have effect and that's that. It has got, in my submission, little to do with his sworn evidence in the proceedings.

HIS HONOUR: Well

WEBB: I can't make any more of it than that. That's my submission.

HIS HONOUR: I suppose the concern is that it may actually impact on his willingness to answer questions if he is not aware of those orders. I think that may be what - I'm not sure - Mr Bhalla was concerned about.

BHALLA: That is the concern.

WEBB: Even if that were so, the questions are the questions and they are directed to those matters which are respectful, obviously, and compliant with the Court's rulings that the cross examiner is aware of. Otherwise, it is submitted, it is not relevant at this stage for him to be advised that he is giving evidence in some more secret or confined aspect.

HIS HONOUR: I understand. Does anybody else wish to be heard on that issue?

ALL COUNSEL INDICATED NO” [4]

4. T, 17/09/20, pp 749-750.

6. The Prosecutor supported the stance taken by the Commissioner but made no submissions.

7. I determined the witness should be told that the Court was closed and that there was an order prohibiting publication of the material beyond the courtroom (that is, a suppression order). [5] My reasons for this were that the witness was clearly concerned about answering questions in relation to the names and activities upon which the cross-examination touched. The reasons for those concerns were valid and verified by the material in the confidential affidavit (Exhibit VD15). There was a concern that his evidence may be tainted if he was influenced by those concerns and that he either refused to answer questions or gave misleading evidence on those issues in order to protect himself. I could identify no real mischief in advising the witness of what had occurred in his absence. Accordingly, in the absence of the jury, the witness was told:

“HIS HONOUR: The reason we adjourned earlier was that the Commissioner of Police made an application and, for the purpose of the evidence you are about to give, I have closed the courtroom and made a suppression order over the evidence. So the evidence can't be published at all outside of the courtroom and there won't be anyone in the courtroom other than people who are involved in the case. Do you understand that?

WITNESS: Okay, yes.” [6]

5. “Suppression order” is defined in s 3 of the Court Suppression and Non-Publication Orders Act as an order that “prohibits or restricts the disclosure of information (by publication or otherwise)”.

6. T, 17/09/2020, p 751.

8. As it turned out, the witness gave answers that were arguably false. This occurred on at least two occasions and concerned the identity of the people with whom he had been dealing when he worked for the telephone encryption service. On each occasion, I had discussions with counsel for the Commissioner in the absence of the parties and their lawyers. [7] I indicated I was minded to revisit my earlier ruling upholding the claim for immunity in respect of the names. Counsel [8] took instructions and, twice, the Commissioner accepted that the parties should be notified of names that had previously been redacted from the witness’s statement and the subpoenaed documents. [9]

   7. These discussions are recorded in a separate confidential transcript which has been placed in a sealed envelope and kept with the Court file.

   8. J Emmett SC and R Bhalla both appeared for the Commissioner on different occasions. Each was well acquainted with the issues and provided helpful submissions.

   9. T, 17/09/2020, pp 768-769, 791-793.

9. On the first of those occasions, the Prosecutor asked that the witness be told that the names had been disclosed. Counsel for Mr Luo objected to this course. I declined to tell the witness that the names had been redacted. [10] The reason was that, by that point, the witness had (at least) obfuscated and (more likely) lied by giving evidence to the effect that he did not know the redacted names. This was in spite of being advised that the Court was closed and the evidence suppressed. I formed the view that Mr Webb was correct in submitting that the witness should not be further advised as to developments that occurred in his absence. I was concerned that advising him that the names had now been disclosed may impact on his evidence and stop him from exposing himself as dishonest by continuing to deny knowledge of names that he had provided to police at an earlier stage.

   10. T, 17/09/2020, p 770.

10. Section 10 of the Court Suppression and Non-publication Orders Act2010 (NSW) provides for interim orders. Such orders may be made without determining the merits of the application: s 10(1). It was on this basis that I made the suppression orders in relation to Mr Rivers’ evidence. Where an interim order is made the Court is required to make final orders as a matter of urgency: s 10(2). On Wednesday, 7 October 2020, Senior Counsel for the Commissioner made an application for final orders. [11] Reliance was placed on the same open and closed affidavits and exhibits. [12] There was no resistance from the parties. Based on the material in the confidential affidavit I was satisfied that the limited final orders sort by the Commissioner were necessary in accordance with s 8 of the Court Suppression and Non-publication Orders Act2010:

(a) to prevent prejudice to the administration of justice; and

(c) to protect the safety of Mr Rivers.

11. T, 7/10/2020, pp 1505-1508.

12. Exhibit VD14 and VD15.

11. Having reached those conclusions, it was perhaps unnecessary to conclude (as I did) that sub-paragraph (e) was also established. That is the orders were “otherwise necessary in the public interest … and that public interest significantly outweighs the public interest in open justice.”

12. In reaching those conclusions, I was conscious about the need to protect informant witnesses and to ensure that future witnesses not be deterred from coming forward. Accordingly, the interim suppression orders were revoked and the following orders were made:

1. Pursuant to s 7 of the Court Suppression and Non Publication Orders Act2010 (NSW), and upon the grounds set out in s 8(1)(a), (c) and (e) of that Act there should be no disclosure beyond this Court of:

1. The names or nicknames given by Leonard Rivers of any person who owned, worked in or received goods or services from, or supplied goods or services to the telephone encryption business at which Mr Rivers was employed and about which he gave evidence;

2. This notice of motion;

3. The evidence in support of this notice of motion; and

4. Submissions made in respect of this motion except for the proper purposes of these proceedings including any appeal proceedings.

2. Pursuant to ss 11 and 12 of the Court Suppression and Non Publication Orders Act 2010 (NSW), order 1 is to apply throughout the Commonwealth of Australia and until 50 years from the date of these orders.

3. The Court shall be closed for the duration of any evidence given by Mr Rivers about the names and nicknames, the subject of this order, or during any oral submissions or addresses that make explicit reference to those names or nicknames.

4. The confidential affidavit relied on by the Commissioner in support of this notice of motion shall be returned to the Commissioner's legal representative at the conclusion of the hearing of this motion subject to the undertaking of the Commissioner's legal representative to make it available as required by the Court.

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Endnotes

Decision last updated: 25 November 2020