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)

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.
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…

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 30)

Details

AGLC: R v Al Batat (No 30) [2020] NSWSC 1475
Case: [2020] NSWSC 1475
Decision Date: 21 October 2020

CaseChat Overview and Summary

In the case of R v Al Batat (No 30), the defendant stood trial for various criminal charges, with the central dispute centering on the credibility and admissibility of certain evidence presented by the prosecution. The case was heard by the High Court of Australia, which was tasked with determining whether the prosecution was entitled to lead evidence of a witness's prior statement, given that the witness denied the substance of the statement and claimed she was threatened by police with charges if she did not make the statement. The defence counsel indicated they had no intention to confront the police with the allegations of threats and intended to put the evidence of the witness's threats "unchallenged."

The primary legal issue was whether the prosecution could rely on the rule in Browne v Dunn to introduce evidence of a witness's prior statement, where the witness denies the substance of the statement and claims she was threatened by police. The court needed to consider the fairness and credibility of the witness's evidence, as well as the principles established in previous cases such as Liberace. The court also had to determine whether the prosecution was entitled to lead the evidence, despite the defence counsel's indication that they would not confront the police with the allegations of threats.

The High Court held that the prosecution was not entitled to lead the evidence of the witness's prior statement, as it would be unfair to do so without putting the matters not put to the witness to her. The court found that the rule in Browne v Dunn did not apply in this case, as the witness denied the substance of the statement and claimed she was threatened by police with charges. The court emphasised the importance of fairness in the proceedings and noted that the witness's evidence would be considered in light of the threats she alleged she faced from the police. The court's decision was based on the principles established in cases such as Liberace and the need to ensure a fair trial for both the defendant and the witness.

The final orders of the court were that the prosecution was not entitled to lead the evidence of the witness's prior statement, and the trial would proceed without that evidence. The court's decision highlighted the importance of ensuring fairness and credibility in the presentation of evidence in criminal trials.

Orders