R v Al Batat (No 29) - [2020] NSWSC 1453

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 29) [2020] NSWSC 1453
Hearing dates: 16 October 2020
Date of orders: 16 October 2020
Decision date: 16 October 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) The evidence of the telephone records relating to contact between the 397, 697 and 184 numbers is admissible.

Catchwords:
CRIMINAL LAW – evidence - telephone records - whether particular number should be included in the schedule - circumstantial evidence - speculation - unfair prejudice - evidence admissible

Legislation Cited:
Evidence Act 1995 (NSW), s 137

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)

An objection is taken to inclusion, in the Prosecutor's proposed telephone records schedule, of some 51 records relating largely to a telephone number ending in 184, for which the subscriber is a Mr Yehia Zakaria. The relevance of Mr Zakaria to the trial is that he was the previous owner of a motor car which, on the prosecution case, was used in the first attempt on the life of Mr Jun Jia on 23 January 2017 in Earlwood on Bexley Road.
The prosecution case is that Mr Luo and others acquired the car from Mr Zakaria in exchange for some drugs, then used the car in an attempted shooting murder of Mr Jia, and later set fire to it somewhere near Five Dock.
The evidence on the voir dire, and in the trial to date, includes, relevantly, the acquisition of two telephones, or SIM cards, with numbers ending respectively in 397 and 697. Those two numbers appear, at least inferentially (if not on the joint position of the parties), to have been acquired at or about the same time. There are similarities in the names of the subscriber for each of those telephones, although they are not identical. They were activated at the same time and there is some suggestion that they were acquired by the witness known as Leonard Rivers. Although there is also a suggestion they may have been acquired by Mr Abdallah Al Batat, one of the co-accused. The cross-examination of Mr Rivers by Senior Counsel for Mr Al Batat might suggest that the former proposition is more likely.
In any event, the telephone services seem to have been acquired at or about the same time, from the same place with similar, probably false, subscriber names. There was a great…

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 29)

Details

AGLC: R v Al Batat (No 29) [2020] NSWSC 1453
Case: [2020] NSWSC 1453
Decision Date: 16 October 2020

CaseChat Overview and Summary

In the case of R v Al Batat (No 29), the defendant was charged with criminal offences including murder and conspiracy. The central issue before the court was whether particular telephone records, which were not included in the schedule of evidence, should be admitted as evidence against the defendant. The court was tasked with determining whether the exclusion of these records would unfairly prejudice the prosecution's case and whether the evidence was admissible under the rules of evidence.

The court considered whether the inclusion of the particular telephone records would provide circumstantial evidence that was relevant and probative to the case. It was emphasised that the evidence should not be based on speculation but must be grounded in factual and reliable information. The court also weighed the potential for unfair prejudice to the defendant if the evidence was admitted, considering the impact on the fairness of the trial. The court found that the evidence, while circumstantial, was sufficiently connected to the case and did not unfairly prejudice the defendant. Therefore, it was deemed admissible.

The court concluded that the particular telephone records should be included in the schedule of evidence. The reasoning was that the records provided a factual basis for the prosecution's case and did not rely on speculation. The evidence was deemed relevant and necessary for a fair trial. The court recognised the importance of balancing the probative value of the evidence against the risk of unfair prejudice.

The final orders of the court included the admission of the particular telephone records as part of the evidence in the case. This decision allowed the prosecution to proceed with the evidence that was found to be both relevant and fair, ensuring that the trial could continue without the exclusion of critical information.

Orders