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
Category: Procedural and other rulings Parties: Regina
Abdallah Hassan Al Batat
Ying Cheng Luo
Ian Fan
Jaiyu Liu
Jacob Blake Bayliss
Nai An LiRepresentation: Counsel:
Solicitors:
P Hogan (Crown)
B Rigg SC (Al Batat)
R Webb (Luo)
T Quilter (Fan)
N Carroll (Liu)
A Norrie (Bayliss)
D Carroll (Li)
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)
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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.
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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…
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- AGLC
- R v Al Batat (No 28) [2020] NSWSC 1452
- Case
- [2020] NSWSC 1452
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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