R v Al Batat (No 28) - [2020] NSWSC 1452

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 28) [2020] NSWSC 1452
Hearing dates: 13 October 2020
Date of orders: 13 October 2020
Decision date: 13 October 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) To allow the Prosecutor to cross-examine Ms Chan last, that is, after Mr Webb’s examination, pursuant to s 26 of the Evidence Act 1995 (NSW); and
(2) To grant leave under s 38 of the Evidence Act to the Prosecutor to cross-examine the witness generally.
(3) Disallow cross-examination of Ms Chan about evidence of her being threatened with a knife, the destruction of her phone and the shooting of her house at Willoughby is not admissible.
(4) Allow cross-examination of Ms Chan about her knowledge of the murder of Qin Wu.

Catchwords:
CRIMINAL LAW – variation of order of examination and cross-examination - where witness unfavourable to the prosecution - where Prosecutor formed the view the witness was untruthful
CRIINAL LAW - evidence - where Prosecutor seeks to cross-examine own witness - subject matters of cross-examination - where relevant count concerning shooting of witness’s house severed from indictment - interlocutory triumphs - where permitting cross-examination would create incurable prejudice

Legislation Cited:
Evidence Act 1995 (NSW), ss 26, 28, 38, 192A

Cases Cited:
Nguyen v The Queen [2020] HCA 23; (2020) 94 ALJR 686
R v Al Batat & Ors (No 2) [2020] NSWSC 992
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19

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

EX TEMPORE Judgment (REVISED)

Pursuant to s 192A of the Evidence Act1995 (NSW), the parties seek an advanced ruling in relation to the evidence of a witness known as Zi Yin (Ada) Chan. Ms Chan gave evidence during the course of a pre-trial hearing, both on the voir dire in relation to an application by Mr Luo to sever Count 2 from the original indictment and also on a Basha inquiry. [1]
1. See Pre-trial Transcript (“PTT”), 20/07/2020, pp 32-53; PTT, 21/07/2020, pp 54-70; PTT, 22/07/2020, pp 127-151.
Count 2 (on the original indictment) was an allegation that on 30 January 2017, Ying Cheng Luo fired shots into Ms Chan's house at Willoughby. Mr Webb, appearing for Mr Luo, in the first 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.

Continue reading R v Al Batat (No 28)

Details

AGLC: R v Al Batat (No 28) [2020] NSWSC 1452
Case: [2020] NSWSC 1452
Decision Date: 13 October 2020

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent against a decision to allow the prosecution to cross-examine a witness, Al Batat, who was unfavourable to the prosecution. The dispute concerned whether the trial judge correctly exercised his discretion to permit the prosecution to cross-examine its own witness, despite a prior ruling that the witness was not to be cross-examined. The appeal was heard in the Supreme Court of New South Wales.

The court was required to determine whether the trial judge erred in varying his earlier order to permit the prosecution to cross-examine the witness. The court needed to consider whether the trial judge had acted within his discretion in varying the order and whether such variation would cause prejudice to the respondent. The court also needed to consider whether the matters to be cross-examined were relevant to the charges against the respondent.

The court held that the trial judge did not err in varying his order to permit the prosecution to cross-examine the witness. The court found that the trial judge had acted within his discretion in varying the order and that such variation would not cause prejudice to the respondent. The court also held that the matters to be cross-examined were relevant to the charges against the respondent. The court found that the relevant count concerning the shooting of the witness's house had been severed from the indictment, and the interlocutory triumphs were not applicable. The court held that permitting cross-examination would not create incurable prejudice to the respondent. The appeal was dismissed.

The court ordered that the appeal be dismissed and that the earlier orders of the trial judge be upheld. The court further ordered that the cross-examination of the witness be allowed.

Orders