R v Al Batat (No 31) - [2020] NSWSC 1556

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 31) [2020] NSWSC 1556
Hearing dates: 28 October 2020
Date of orders: 28 October 2020
Decision date: 28 October 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
The application to limit the use of Leonard Rivers’ evidence of a conversation with Ying Cheng Luo on 11 or 12 January 2017 pursuant to s 136 of the Evidence Act 1995 (NSW) is granted.

Catchwords:
CRIMINAL LAW – hearsay evidence - application to limit use of evidence - admissions by one accused to witness - contract to kill - acceptance of contract - intention to carry out contract - not admissible as an admission against co-accused - in one respect admissible as evidence of contemporaneous representation of speaker’s intention - admissible as circumstantial evidence of subsequent agreement and joint criminal enterprise - appropriate to make an order limiting use of evidence against co-accused

Legislation Cited:
Evidence Act 1995 (NSW), ss 87(1)(c), 66A, 136

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 application is made on behalf of the accused, Mr Al Batat, to limit the use of certain evidence given by a witness known as Leonard Rivers earlier in the trial pursuant to s 136 of the Evidence Act 1995 (NSW). The evidence concerned a conversation the witness alleges he had with the accused, Mr Luo, on 11 or 12 January 2017. The evidence was as follows:

“Q. After that transaction where you rented the Kia Rio car, where did you take it?

A. Initially, um, possibly home I think in Surry Hills.

Q. So possibly to Surry Hills?

A. Yes.

Q. When after that did you next go to the apartment at Burwood?

A. It was only probably the next day or maybe even the same day.

Q. When you were next at the apartment at Burwood, I want to ask you about a conversation that you had with Mr Luo?

A. Yes.

Q. Did he tell you something to do with a contract?

A. Yes.

Q. What did he tell you the contract was for?

A. It was to murder someone.

Q. Did he tell you that he had received a contract to murder someone?

A. Yes.

Q. Did he tell you why‑‑

WEBB: Could I ask the Crown to not lead at this point and ask what the conversation was in terms of…

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.

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Details

Case: [2020] NSWSC 1556
Decision Date: 28 October 2020

CaseChat Overview and Summary

The case of R v Al Batat (No 31) was heard in the High Court of Australia. The dispute involved two accused individuals who were jointly charged with conspiracy to commit murder. The central issue was the admissibility of certain hearsay evidence, specifically admissions made by one accused to a witness regarding their acceptance of a contract to kill and their intention to carry out the contract. The court was tasked with determining whether these admissions could be used against the co-accused and, if so, under what circumstances.

The primary legal issue revolved around the application of hearsay rules and the admissibility of evidence that was an admission by one accused but against the other. The court had to consider whether such evidence could be used as an admission against the co-accused or if it could only be admitted for other purposes, such as demonstrating a contemporaneous representation of the speaker's intention or as circumstantial evidence of a subsequent agreement and joint criminal enterprise. The court also had to decide whether an order limiting the use of the evidence against the co-accused was appropriate.

The court found that the admissions could not be used as admissions against the co-accused. However, in one respect, they could be admitted as evidence of the speaker's contemporaneous intention. Furthermore, the court held that the admissions were admissible as circumstantial evidence of a subsequent agreement and joint criminal enterprise. The court concluded that it was appropriate to make an order limiting the use of the evidence against the co-accused to prevent any unfair prejudice.

The court made an order limiting the use of the contested evidence against the co-accused, ensuring that it was only used for specific purposes such as demonstrating the speaker's intention and as circumstantial evidence of a subsequent agreement and joint criminal enterprise. This decision underscored the importance of balancing the probative value of the evidence against the potential for unfair prejudice to the co-accused.

Orders