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)

1. 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.

2. 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.

3. 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.

4. 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 deal of contact between the 397 number and the 697 number, on 18 and 20 January 2017. This is evident from a telephone record schedule of 184 records tendered on the voir dire as Exhibit VDZ. The 397 number is admitted to be a telephone service used by Mr Luo.

5. It is then the prosecution case that the vehicle was acquired, and there are a series of telephone records showing contact between the 697 number and the 184 number associated with the vendor of the car, Mr Zakaria.

6. The objection taken on behalf of Mr Luo is made pursuant to the provision in s 137 of the Evidence Act 1995 (NSW). Counsel for Mr Luo, that is, Mr Webb, submitted that the evidence will invite unfair and irrational speculation on the part of the jury that the contact between the 397 and 697 numbers was to do with the purchase of the car.

7. What the Prosecutor says is that the evidence is relevant, in that it is capable of bearing upon the issue of whether Mr Luo had some connection with the car, either in terms of its acquisition or in terms of it being burnt out or both. The Prosecutor says this clearly became an issue in the trial in the course of the cross-examination of the witness Mr Rivers, when it was put to him that Mr Luo played no role in obtaining the car.

8. Mr Webb’s submission appears to be that the jury would engage in speculation rather inference drawing as a result of this evidence and that this would result in unfair prejudice to Mr Luo: [1]

“The objection for Mr Luo concerns the Crown’s use of the circumstance raising a link in the evidence between Mr Luo and a 697 number. The relevance of the 697 number is that there is contact between this number and Mr Zakaria’s number on 18 January 2017. Mr Zakaria’s number as it concerns the contact between the number ending in 679 and 184 (Mr Zakaria’s number) appears in attachment A [Exhibit VD20].

In the defence 143 document[2] the number ending in 397 is admitted to be a service used by Mr Luo. On 19 January 2017 the 397 number calls the 697 number.

The 697 has false subscriber details per one H N Ly.

The number was purchased at a phone shop in Burwood near where Mr Luo and (sometimes) Mr Rivers resided.

Accordingly, the s137 application concerns the link between Mr Luo’s 397 number and the 679 number which contacts Mr Zakaria’s 184 number.

Mr Luo submits that the danger of unfair prejudice arises from the inference that the contact between the 397 number and the 697 number concerns the purchase of Mr Zakaria’s car. It may or may not have concerned this issue. However, the content of the unfair prejudice is submitted to be that suspicion would necessarily constitute the make weight for proof because the use of the link beyond a non hearsay purpose would be speculation and no more. It would otherwise be, it is submitted, problematic and repetitive of the prejudice identified to confine the prejudice by regard to s136. In order to give the link meaning, speculation would inevitably enter the tribunal’s approach to the circumstance.”

1. See MFI VD70 (Mr Webb’s Written Submissions).

2. This is a reference to the accused’s notice (“defence response”) under the Criminal Procedure Act 1986.

9. In my view, there is no danger of unfair prejudice. The jury will be able to conclude that there is a connection, albeit indirect, between Mr Luo and this 697 telephone service and Mr Zakaria, the vendor of the vehicle. This may, in the jury's mind, provide some inferential support for Mr Rivers' account that Mr Luo did play a role in the acquisition of the car, as he said, by paying for it. [3]

   3. Transcript, 21/09/2020, p 827.

10. The jury will be clearly directed as to the way in which circumstantial reasoning works, and that they must not speculate. I assume that they will follow such directions.

11. Accordingly, the evidence of the telephone records relating to contact between the 397, 697 and 184 numbers is admissible.

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Endnotes

Decision last updated: 25 November 2020