R v Al Batat (No 31)
[2020] NSWSC 1556
•28 October 2020
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 LiRepresentation: Counsel:
Solicitors:
P Hogan (Crown)
B Rigg SC (Al Batat)
R Webb (Luo)
T Quilter (Fan)
N Carroll (Liu)
A Norrie (Bayliss)
D Carroll (Li)
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)
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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 the witness' recollection of this conversation.
HIS HONOUR: That seems reasonable. It is pretty important evidence so as general as you can make the question.
CROWN PROSECUTOR: Yes.
Q. Did he say anything then about the reason that the contract had been taken out?
A. Yes.
Q. What was that?
A. That someone had stolen 3kg of ice.
Q. Did he tell you the name of the person?
A. Yes, he did.
Q. What did he ‑ sorry, I should be more clear. Did he tell you the name of the person who the contract to murder related to, who it was that was to be murdered?
A. No, he didn't.
Q. What did he refer to that person as?
A. Usually just ‘the guy’ or ‘the dog’.
Q. So who then was the name that he told you in relation to the contract?
A. As in the person issuing the contract?
Q. Well, is that who he told you the name of?
A. Yeah, he told me his name was James.
Q. This conversation with Mr Luo, can you place that by reference to the day that you hired the car?
A. It was probably, oh, I would say probably two days after that.
HIS HONOUR: Can I just clarify or ask you to clarify the order of things. Two days after which?
CROWN PROSECUTOR: Yes, thank you, your Honour.
Q. So, which happened first, hiring the car or the conversation about the contract?
A. Hiring the car happened first.
Q. What else did Mr Luo say about James and the contract?
A. He said that it was for $50,000.
Q. What did you say when he told you that?
A. Something, words to the effect of ‘are you going to do it?’
Q. What did he say?
A. He said words to the effect of ‘yes’.” [1]
1. Transcript (T), 15/09/20, pp 593 – 595.
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The evidence is clearly admissible against Mr Luo. His case, as I understand it, is that there was no such conversation. Against Mr Luo, this evidence can be used to establish (speaking generally) that:
The person referred to as "the guy” or "the dog" (which the jury may readily infer from other evidence is Jun Jia) had stolen 3 kilograms of ‘Ice’;
The person from whom he stole it, James and perhaps Jackie, had taken out a contract on his life; and
That Mr Luo had accepted that contract.
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Because the evidence is in the nature of an admission by Mr Luo, it is inadmissible hearsay against the other accused. Section 87(1)(c) of the Evidence Act does not apply because there was no common purpose alleged at the time of the conversation. Accordingly, the alleged out-of-court statement cannot be used against the other accused to prove that Jun Jia had stolen Ice, that a contract was taken out on his life or that Mr Luo had accepted that contract.
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However, the part of the conversation where Mr Luo said words to the effect of "Yes" to the question "Are you going to do it?", is - and it is conceded by Senior Counsel that it is - a contemporaneous representation about his intention and is admissible against all of the accused under s 66A of the Evidence Act (as an exception to the hearsay rule). The evidence is capable of supporting the prosecution case, at least inferentially, in relation to the existence and nature of the alleged joint criminal enterprise subsequently formed between Mr Luo and Mr Al Batat, and, some days later, Mr Liu and Mr Fan.
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Each of the other accused, with the obvious exception of Mr Luo, joined Senior Counsel's application. The Prosecutor did not contest that the evidence should be limited in the way suggested.
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Accordingly, I make an order under s 136 of the Evidence Act 1995 (NSW) limiting the use of the evidence in that way. The jury will be so directed.
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Endnote
Decision last updated: 25 November 2020
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