R v Al Batat (No 30)

[2020] NSWSC 1475

Supreme Court

New South Wales

Medium Neutral Citation:

R v Al Batat & Ors (No 30) [2020] NSWSC 1475

Hearing dates:

20, 21 October 2020

Date of orders:

21 October 2020

Decision date:

21 October 2020

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1)    The Prosecutor may call the witnesses to give evidence in accordance with paragraph [25], but not to give evidence of the way the statement was taken or of the four specific matters referred to in paragraphs [7], [14] and [26].

Catchwords:

CRIMINAL LAW – evidence - the parties don’t agree on much - credibility evidence - unfavourable witness cross-examined by leave - where evidence of witness’s statement before the jury - where witness denies substance of statement - where witness says police threatened her with charges - where defence counsel indicate no intention to confront police with allegations - intention to put evidence of witness as to threats “unchallenged” - the rule in Browne v Dunn - whether Prosecutor entitled to lead evidence - where matters not put to the witness - credibility rule - fairness - Liberace

Legislation Cited:

Evidence Act 1995 (NSW), ss 101A, 102, 106

Cases Cited:

Browne v Dunn (1893) 6 R 67

MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329

R v Al Batat & Ors (No 20) [2020] NSWSC 1319

R v Al Batat & Ors (No 24) [2020] NSWSC 1387

R v Al Batat & Ors (No 25) [2020] NSWSC 1388

R v Birks (1990) 19 NSWLR 677

R v Manunta (1989) 54 SASR 17

Regina v Ayoub [2004] NSWCCA 209

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. The parties have raised a difficult and complicated issue very late in the trial in circumstances where the jury was told there would be a late start due to a “legal argument” and where they have been waiting for a further hour beyond the start time. For those reasons, this judgment has been prepared hurriedly and delivered ex tempore and may be subject to significant revision before publication.

2. Objection has been taken to evidence proposed to be led by the Prosecutor as to the manner of the taking of a statement from a witness known as Martina Sellers. Her evidence and her statement dated 29 June 2017 (MFI 24) have been subject to a number of earlier rulings in the trial: see R v Al Batat & Ors (No 20) [2020] NSWSC 1319; R v Al Batat & Ors (No 24) [2020] NSWSC 1387; R v Al Batat & Ors (No 25) [2020] NSWSC 1388.

3. Ms Sellers was cross-examined by the Prosecutor about the contents of her statement, after he was granted leave to do so under s 38 of the Evidence Act 1995 (NSW). In a nutshell, Ms Sellers agreed that she had said things in her statement concerning Mr Bayliss' possession of guns and consistent with the prosecution case that there was an exchange of guns on 1 February 2017 between Mr Bayliss as the "supplier", and Messrs Luo, Liu and Fan as the "purchasers". However, Ms Sellers denied that the things that she said in her statement in relation to the guns were her true recollections of the events that occurred.

4. In evidence, Ms Sellers did not at any stage adopt the things she said about guns. She did, however, agree that she had said things about a drug supply moving in the other direction, that is from Messrs Luo, Liu and Fan to Mr Bayliss and herself. In the course of her evidence, Ms Sellers adopted those things as being true. As I understand it, that is generally consistent with the pleas that have previously been entered by the various accused involved (Messrs Luo, Liu and Fan) and with the case that they are conducting in this trial.

5. However, the contents of Ms Sellers’ statement that relates to what she said about guns are before the jury as evidence of the truth of those statements; that is, for a “hearsay purpose” in accordance with s 60 of the Evidence Act. An application made earlier in the trial, perhaps precipitously, to limit the use of the evidence was declined: see R v Al Batat & Ors (No 25) [2020] NSWSC 1388 at [33]-[34].

6. In the course of the evidence-in-chief conducted, as I say, by way of cross-examination by leave granted under s 38 of the Evidence Act, the Prosecutor put to the witness that she was not telling the truth and was not making a genuine attempt to do so.

7. In cross-examination on behalf of the various accused, a number of propositions were established. Of those propositions, four are of particular relevance to the present argument. These were enumerated by the Prosecutor yesterday when this issue was first raised. Those four issues can be put generally in this way:

1. That Ms Sellers said that she was on drugs at the time she made her statement and in particular that she was in prison at the time and taking a drug described as “Bupe”;

2. That she did not want to make a statement at all;

3. That she would have tended to agree with leading questions put to her and;

4. Perhaps most significantly, in one respect at least, that she had been threatened by police with criminal charges. [1]

   1. Transcript (“T”), 25/09/2020, p 1073-1074.

8. The last issue emerged in the following cross-examination on behalf of Mr Bayliss: [2]

   2. Ibid.

“Q. Doing the very best you can, how is it you came from that position, that is ‘I didn't want to do it at all’, to doing the statement on 29 June 2017?

A. Um.

Q. As best you can?

A. I can't answer that, like I'm not too sure. Basically the way it got put to me, you know, partly, yeah, like I was just, you know, because I was in gaol and stuff, like, you know, my freedom was getting threatened, they tried to say that. Like I didn't even know that his real name was Jake, whatever his real name is, you know, and, yeah, and the detectives just come just throwing stuff at me, like, you know.

Q. What do you mean by that?

A. Threatening me.

Q. How?

A. Like, I don't know, me getting charged and that. I was just, yeah.

Q. When you say ‘threatened’, are you referring to the officers?

A. Not threatening, like, you know, I don't know how to explain it.

Q. Do your best, please?

A. I can't, yeah.

Q. What was - do you recall - you referenced ‘charges’, what kind of charges were suggested to you?

A. Mm-mm, I don't know. I'm not too sure.

Q. Criminal charges?

A. Yeah, yeah.

Q. Are you saying, and tell me if I've got this wrong, please, are you saying you were threatened with criminal charges?

A. Yeah.

Q. By police?

A. Yeah.

Q. Who visited you?

A. Yeah.

Q. Are we talking about—

A. They were just, like saying, you know, like it's accessory and this is and that.

Q. I see. Was there any mention of the word "murder"?

A. No, they didn't tell me what happened. They just told me that Jacob told them everything and rah rah rah, that's obviously that's how they got for me to, like, you know, open my mouth.

Q. Do I take it from your answers just now that you felt pressured to do this statement?

A. Yes, I was very vulnerable at that time of my life too, you know.”

9. There was a strong implication throughout the cross-examination that words had been put in the witness’s mouth. For example, Ms Sellers’ statement contains a street name, Deane Street, Burwood, that seemed to be unknown to her. There were other expressions, phrases and words used with which she appeared not to be in any way familiar with. The suggestion was clearly that the investigating police may have provided the information to her in one way or another.

10. The other matter that emerged, both in the evidence-in-chief and in the cross-examination, was that she claimed to be surprised that the police had attended upon her at all. Ms Sellers said she thought she was being called out at the prison to take a phone call to do with her Centrelink entitlements. Instead there were police officers present and they proceeded to interview her about her knowledge of the events of 1 February 2017. That is the day Mr Bayliss allegedly supplied guns to Mr Liu, Luo and Fan and the day that those guns were allegedly used in the murder of Qin Wu. Ms Sellers was asked whether or not police had attended on her some days earlier and she denied that proposition, or said that she couldn't remember.

11. The Prosecutor now seeks to adduce evidence from the two police officers who were responsible for taking her statement. Statements dated 29 September 2020 by both Detective Senior Constable Matthew Sinclair and Plain Clothes Senior Constable Niall Chivers were tendered in evidence on the voir dire (Exhibits VDAA and VDBB respectively). The statement of Detective Senior Constable Matthew Sinclair is in the following terms:

“1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I now to be false, or do not believe to be true.

2. I am 35 years of age.

3. On Tuesday, 27 June 2017, I attended the Emu Plains Correctional Centre with Plain Clothes Senior Constable Nial (sic) CHIVERS. At this time, we met with Martina SELLERS in a private room made available by the Corrective Services Officers.

4. SELLERS told CHIVERS and I certain things about her movement and actions on 1 February 2017, with a person known to them as Shiv.

5. Following the meeting with SELLERS both CHIVERS and I attended the Granville Police Station where I prepared an investigator’s note detailing the things said by SELLERS during the meeting.

6. This investigator note was titled, “Gaol Meeting 27/06/2017 Emu Plains” and dated 27/06/2017, 1.55pm. This investigator note is attached as Annexure A.

7. On Thursday, 29 June 2017, I attended the Emu Plains Correctional Centre with CHIVERS. At this time, we met with Martina SELLERS in a private room made available by the Corrective Services Officers.

8. At the Emu Plains Correctional Centre, I was in possession of a laptop computer I prepared to take a statement from SELLERS with.

9. Before obtaining the statement from SELLERS, I explained to SELLERS paragraph one (1) and paragraph (3). I then asked SELLERS to read both paragraph one (1) and paragraph (3) of the induced statement.

10. After a short time, I was satisfied SELLERS understood both paragraph one (1) and paragraph three (3) that formed part of the induced witness statement.

11. In the presence of CHIVERS I obtained an 11-page induced witness statement from SELLERS. At the completion of the statement I printed the witness statement and made the statement available for SELLERS.

12. I observed SELLERS in the presence of CHIVERS and I read and then sign the 11-page induced witness statement indicating its truth and accuracy.

13. I then in the presence of CHIVERS and SELLERS witnessed the 11-page induced witness statement.”

12. Similarly, the statement of Plain Clothes Senior Constable Niall Chivers reads:

“1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I now to be false, or do not believe to be true.

2. I am 32 years of age.

3. On 27 June 2017, Detective Sinclair and I attended the Emu Plains Correctional Centre. At this location Detective Sinclair and I spoke with Martina Sellers. At the conclusion of this meeting, Detective Sinclair and I attended a Police Station and I was aware that Detective Sinclair created a document referred to as an Investigators Note relating to this meeting.

4. I have reviewed this document prepared by Detective Sinclair and it is an accurate representation of this meeting.

5. On 28 June 2017 I became aware that an induced statement authority had been granted relating to Martina Sellers.

6. On 29 June 2017 Detective Sinclair and I attended Emu Plains Correctional Centre. On this date Detective Sinclair obtained a statement from Martina Sellers. Whilst obtaining this statement Martina Sellers provided information and it was typed into a format by Detective Sinclair. When this was completed the statement was printed, Martina was provided with a copy and read it before signing each page.”

13. Other evidence tendered on the voir dire included two email chains wherein various legal representatives on behalf of the accused sought disclosure in relation to the way in which these statements were taken (see Exhibits VD21 and VD22). Also tendered was a handwritten note, which became Exhibit VD23, and appears to be the source of an investigator's note which is attached to Mr Sinclair's statement.

14. In addition to the matters contained in the statements of the police officers, the Prosecutor seeks or indicates that he intends to ask questions on the four subject matters that I have referred to earlier and which were identified by him in the course of the argument. That is:

1. Whether Ms Sellers appeared to be on drugs at the time she made her statement;

2. Whether she said she didn't want to make a statement;

3. Whether she was asked leading questions or, put another way, whether words were put in her mouth; and

4. Whether or not there was any threat made to charge her with a criminal offence if she did not make the statement.

15. The parties don't agree on much but they do all agree that this evidence is credibility evidence. I accept the submission made on behalf of all of the parties that the evidence is “credibility evidence” within the meaning of s 101A of the Evidence Act:

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that--

(a) is relevant only because it affects the assessment of the credibility    of the witness or person, or

(b) is relevant--

(i) because it affects the assessment of the credibility of the       witness or person, and

(ii) for some other purpose for which it is not admissible, or          cannot be used, because of a provision of Parts 3.2 to 3.6.

16. Consequently, the credibility rule in s 102 applies. This rule states that “credibility evidence about a witness is not admissible”.

17. However, s 106 of the Evidence Act provides an exception to the credibility rule:

Exception: Rebutting Denials by Other Evidence

(1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if--

(a) in cross-examination of the witness--

(i) the substance of the evidence was put to the witness, and

(ii) the witness denied, or did not admit or agree to, the          substance of the evidence, and

(b) the court gives leave to adduce the evidence.

(2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness--

(a) is biased or has a motive for being untruthful, or

(b) has been convicted of an offence, including an offence against the    law of a foreign country, or

(c) has made a prior inconsistent statement, or

(d) is, or was, unable to be aware of matters to which his or her    evidence relates, or

(e) has knowingly or recklessly made a false representation while    under an obligation, imposed by or under an Australian law or a law of    a foreign country, to tell the truth.

18. The accused submit that the substance of the evidence was not put to Ms Sellers; that is, the substance of the evidence the Prosecutor now wants to adduce. It was not put to her by the Prosecutor that she was not on drugs at the time of the statement, that the police did not threaten to charge her, that she was not asked leading questions, nor whether things were put into her statement coming from any source other than herself, and whether she was falsely claiming that she did not want to make a statement.

19. I would note, parenthetically at this point, that the statement itself was an induced statement, so that clearly she was promised something, namely, that the evidence that she gave in her statement wouldn't be used against her. That evidence is already before the jury.

20. The Prosecutor submitted to the contrary and said that s 106 of the Evidence Act was complied with, based on the fact that the substance of the evidence had been put to Ms Sellers. The Prosecutor made the following submissions to this effect: [3]

    3. See T, 21/10/2020, pp 1899-1902.

“CROWN PROSECUTOR: How I get around that and how I say 106 operates is complicated by the fact that the cross examination, the relevant cross examination, the Crown says, was cross examination by the Crown with leave under section 38. The relevant denials in cross examination is the denial that the content of her statement specifically about the guns was the truth. And that was put to her.

It is not a matter of denying in cross examination her assertions in subsequent cross examination on behalf of the accused about being on drugs and not wanting to make the statement and the other matters that I've addressed your Honour on. The relevant denial for the purposes of 106 is the denial by Ms Sellers that the content of her statement about there being guns present on 1 February was the truth. That was put to her in cross examination.”

…

“CROWN PROSECUTOR: I'm trying to, through the police officers, adduce evidence that goes to the process by which the statement was taken in order for the jury to assess this question of whether they accept the content of the statement was true or not. That is what was put to her and that is what was denied by her specifically in relation to the guns.”

…

“CROWN PROSECUTOR: … The relevant evidence that was put to the witness was the content of her statement. The substance of the evidence is the contents of her statement, that there were guns present on 1 February. The relevant denial for the purposes of 1(a)(ii) of s 106 is her denial that there were guns present on 1 February.

Now, if that's a correct analysis, the question is does your Honour grant the Crown leave to adduce the evidence adduced otherwise from the witness, that is evidence adduced through the police officers, that is relevant to the witness' credibility? It is relevant to the witness' credibility in the jury's assessment of her denial that the content of her statement was true and that there were guns present.”

…

“CROWN PROSECUTOR: …[T]he relevant denial, the Crown says, is her denial that the things that were in her statement are the truth. That is the way the credibility rule operates, the Crown submits, in order to entitle the Crown to adduce evidence from the other witnesses to rebut the denial by her, that is the denial by her that the content of her statement was the truth. That is the way the Crown says the credibility rule and the exception to the credibility rule in relation to rebutting denials by other evidence operates. It didn't require me to put specifically those matters to her in re-examination, because I had already cross examined. The relevant denials are the denials to me when I was cross examining her with leave under s 38, the Crown says. S 106 doesn't oblige me to cross examine her about those topics when they only arose in cross examination by other parties.

The credibility issue is whether she was telling the truth when she made her statement. That is the fact in issue. That is what the jury has to determine, whether they ultimately accept that in her statement she told the truth and that she is not being honest when she gives evidence in court. That's the denial by her that is relevant for the purpose of s 106. The denial by her that I think Mr Webb summed it up as no way, not a chance, amen, there was nothing about guns on 1 February. That is the issue that the jury have to determine, whether the content of her statement was the truth. This evidence assists in relevant to an assessment of that, that s 106 doesn't require me, in the Crown's submission, to put in terms those matters.”

21. I reject those submissions. I accept the submissions made by counsel for Mr Bayliss and Mr Fan on this issue. The "evidence" referred to in s 106(1) of the Evidence Act is the credibility evidence under consideration. It is not the general evidence that the witness gave, let alone the evidence contained in the police statement upon which she was cross-examined. Compliance with the section involves more than simply challenging the witness's honesty. Putting the "substance of the evidence" to the witness in s 106(1)(a)(i) of the Evidence Act involves putting the substance of the credibility evidence that the Prosecutor now seeks to establish.

22. Of that evidence, the only matter actually put to Ms Sellers in re-examination was that there had been an earlier conversation with the police. In relation to that the witness was unsure: [4]

“Q. You were asked in cross-examination this morning about whether you recalled the police speaking to you a couple of days before 29 June 2017. Do you recall that before you made your statement, the police had asked you in general terms what it was that you were going to be able to tell them?

A. I'm not too sure.

Q. That was a couple of days before they then returned and took the detailed statement?

A. I don't recall that.”

4. T, 25/09/2020, p 1086.

23. The circumstances are unusual and I have taken that into account in considering how s 106 should operate in the particular circumstances. They are unusual because the evidence-in-chief was elicited almost entirely by cross-examination on the statement, so that the Prosecutor did not, in the usual course, have the kind of opportunity that would normally arise when s 106 is invoked as an exception to the credibility rule. However, the provisions in sections such as ss 26 and 28 of the Evidence Act provide sufficient flexibility to accommodate this. It was open to the Prosecutor at the time Ms Sellers was in the witness box to further cross-examine her and specifically to challenge her evidence on the subjects he now seeks to introduce through the police officers. Had he needed it, he could have sought an adjournment to allow himself to obtain the necessary “instructions”.

24. As I have said, the Prosecutor did in re-examination raise the fact there was an earlier interview. That was to rebut evidence the witness had volunteered, and that had been emphasised in the course of cross-examination, that she was surprised by the police attendance.

25. I am satisfied that the Prosecutor should be permitted, and will be permitted, to call both Officer Sinclair and Officer Chivers. They will be permitted to give evidence generally in accordance with their statements to establish (i) that they saw the witness on 27 June 2017, (ii) were told "certain things" about her movements on 1 February 2017 and (iii) that they made a note of the meeting. The note to which I refer, that is, the note in both its forms – the handwritten version and the investigator's note that was typed up from it – is not pressed by the prosecution and in any event, without going into reasons, would not be admissible as a prior consistent statement. The officers will also be permitted to give evidence that they returned to interview the witness on 29 June 2017 and took a statement from her.

26. The Prosecutor will not be permitted to produce evidence of the four specific matters identified in argument, namely:

1. Evidence that she was not, or did not appear to be, on drugs;

2. Evidence that leading and suggestive questions were not put to Ms Sellers;

3. Evidence that she was somehow threatened or placed under pressure to make a statement by reference to her involvement and the possibility of her being charged; and

4. Evidence that she was freely and voluntarily making her statement. That is, the Prosecutor will not be permitted to lead evidence to contradict Ms Seller’s evidence that she didn't want to make a statement.

27. In relation to those four matters, s 106(1)(a) of the Evidence Act is not satisfied. Therefore the credibility rule applies to the evidence and the evidence is not admissible.

28. The Prosecutor submitted that the reason he sought to raise the matter at all was that he was concerned that the defence counsel intended to disregard the rule in Browne v Dunn (1893) 6 R 67. That is, defence counsel did not intend to cross-examine the police and provide them the opportunity to confirm or deny the things Ms Sellers said about the making of her statement.

29. In argument, defence counsel confirmed that the Prosecutor's understanding was correct. Counsel for Mr Bayliss informed the Court of his intentions as follows:

“NORRIE: I propose to say to the jury, I'm answering your Honour's question, that Ms Sellers speaks of essentially pressure brought to bear upon her and that it was evidence when she gave it that was unchallenged by the Crown and that, insofar as the jury accepts what she says about pressure being brought to bear, that they can take it into account when considering the truth or otherwise of the statement that was dated 29 June 2017, along, of course, with other things that she has said about it, concerning street names, et cetera, and other details I took the witness through.

HIS HONOUR: What are you going to say, just for example, about the street names? Where are you going to suggest to the jury she got Dean[e] Street from?

NORRIE: I'm not going to suggest - let me go back a step. I'm going to highlight how the witness is unable to explain how those details made their way into her statement and I'm going to suggest to the jury that these are very detailed matters which the witness, who is otherwise unfamiliar with Burwood, would be able to recall or recount in a statement. I don't believe I'm in a position, your Honour, to go beyond that and suggest that I think I would have to stop at that point.

HIS HONOUR: Are you going to talk of pressure being brought to bear on her?

NORRIE: Yes. She does speak in the transcript, this is at transcript 1073

HIS HONOUR: That she felt threatened.

NORRIE: Yes, felt threatened, but she says ‘Detectives just come up throwing stuff at me’, that's at line 13. She says all these things, your Honour. I would refer to those details and highlight that they, if accepted by the jury, that those details occurred and what follows on that page, including things such as at line 46, references to ‘accessory’, that they also would be able to be taken into account when the jury comes to consider the statement of 29 June 2017. And, your Honour, again, just to be very candid with the Court, I would be suggesting this is unchallenged evidence on the part of Martina Sellers.”

30. A trial judge is not in a position, and ought not to attempt, to force counsel to ask particular questions because of some perceived failure to comply with rules such as the rule in Browne v Dunn. In the case of Regina v Ayoub [2004] NSWCCA 209, a trial judge did just that and the Court of Criminal Appeal held that the trial miscarried as a consequence:

“[40] His Honour’s action in effectively forcing counsel for the accused to ask questions purportedly to comply with the rule in Browne v Dunn, in a situation where the witness up to that point had not given direct evidence that he had seen the accused stab Jones, was incorrect. The adversarial system does not require a judge to take such an action in the course of a trial – particularly where in fact no contravention of the subject rule had occurred. In other words his Honour’s action resulted in the accused being subjected to procedural unfairness. In short I find that this ground is also made out.”

31. Because of the ruling that I have made, the two witnesses in question, that is Officers Sinclair and Chivers, will be called to give evidence and will be made available for cross-examination. How counsel for the accused approach that cross-examination will be a matter for them. No doubt in embarking upon it, they will be conscious of the forensic and ethical consequences of failing to put matters, especially matters that may involve allegations of misconduct, to the two officers. There is ample material in the statement and in the evidence given by Ms Sellers upon which to base substantial cross-examination, but that is entirely a matter for counsel to decide. No doubt, counsel will be guided by things said in cases such as MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329; R v Birks (1990) 19 NSWLR 677, and R v Manunta (1989) 54 SASR 17.

32. In his textbook on evidence, [5] Mr Odgers sets out some of the possible consequences of a breach of the rule in Browne v Dunn at paragraph 46.150. I am referring here to the 15th edition of the book. A number of those consequences do not apply in criminal proceedings and the rule in Browne v Dunn ought not to be, and will not be in this case, used to punish the accused for the failings, real or perceived, of counsel. However, it may be that some comment will be warranted or necessary.

    5. Stephen Odgers, “Uniform Evidence Law” (15th Edition, Lawbook Co, 2020).

33. Whatever the ultimate outcome, the nature of a direction (if any) that I provide to the jury will turn on the cross-examination of the police officers and the nature of the addresses made to the jury.

34. I should add that I was also persuaded by Mr Webb's submissions that there was particular unfairness to his client in allowing the police, almost immediately before addresses, to give evidence that might be expected that it was: [6]

“WEBB: They [Mr Sinclair and Mr Chivers] will be back here and there for all manner of reasons. Mr Sinclair, perhaps not if your Honour would rule against this; Mr Chivers will be coming in and out and there will be some cross-examination at the end. Mr Luo certainly won't be raising anything to do with the Sellers issue, a few bits and pieces which are unrelated.

The issue where the s 60 statements come in, it is very important, it is submitted, in the context of s 38 applications, particularly important that at the time when counsel stand up to cross-examine, one knows what is in the cupboard, what skeletons in the cupboard. The way the Act works, and your Honour doesn't need any lectures from me about that, so that is the unfair prejudice.

Where it will go by extending the trial for two weeks - I'm not saying anything about the police - Ms Sellers would come in and likely say who knows what; but, in the end, the degree of relevance, the collateral relevance of the recall, she would probably remain an unreliable witness to some degree, such as the jury may consider your Honour's directions and what they saw and observed in the box and in response to questions; but the deadly prejudice of an unfair kind is that at the end of the trial, a couple of professionals get in, the best interview we ever did, thoroughly convinced, you know, never quite saying truth. That would be a pronounced unfairness to the accused.”

6. T, 21/10/2020, pp 1895-1896.

35. Mr Webb sought to add force of his submissions by reference to the iconic performer Liberace: [7]

“WEBB: Now, at the end of the trial, two professionals get in the box and the best statement they ever took, fantastic, like Liberace and the jury, in my respectful submission, without any real recourse on the part of the accused, certainly Mr Luo, will take up an issue of very large importance in the trial which, when the accused came to cross-examine, were cross-examining with a white cane, were blind to the issue. That would be to say that a matter of the utmost gravity in the trial would go the way of the Crown because the defence had no notice whatsoever about it.”

7. T, 21/10/2020, p 1895.

36. I will let that go, but Mr Webb’s point, well made, was that there was real unfairness in allowing this particular issue to play out at the very end of the trial. Ms Sellers gave evidence on 24 September 2020. It is now 21 October 2020, and I have been told by counsel that the prosecution case will end either this week or early next week, and that no defence cases are expected to be given. Consequently, this issue will play out almost immediately before the Prosecutor's address. Mr Webb is correct to identify that as having a particular unfairness in the circumstances of the case. I also accept that the attack that Mr Luo made (implicitly) on the taking of the statement was of a far less substantial kind than that made on behalf of Mr Bayliss.

37. For those reasons, the Prosecutor may call the witnesses to give evidence in accordance with paragraph [25] but not to give evidence of the way the statement was taken or of the four specific matters referred to in paragraphs [7], [14] and [26].

**********

Endnotes

Decision last updated: 25 November 2020