R v Al Batat (No 4) - [2020] NSWSC 1076

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 4) [2020] NSWSC 1076
Hearing dates: 14 August 2020
Date of orders: 14 August 2020
Decision date: 14 August 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1)   I direct that any new material to be relied upon by the prosecuting authorities, either to be tendered in the trial or by way of disclosure, is to be produced to the solicitors for each of the accused by the Director of Public Prosecutions or his officers and not by officers of the New South Wales Police Force.
(2)   The Prosecutor is to notify the accused's lawyers as soon as such material is made available to them, that such material has been provided and provide a copy of that material to any of the accused's lawyers who ask for it.
(3)   Otherwise, the Prosecutor is to determine as soon as possible and give a clear indication of any material that it may seek to tender in the trial, or whether it is being provided by way of disclosure material.

Catchwords:
CRIMINAL LAW - procedure - service of voluminous material by police - where Prosecutor not first provided with material - no filter - pre-trial arguments proceeding - trial imminent - application for police to desist - case management orders made

Legislation Cited:
Criminal Procedure Act 1986 (NSW), ss 139, 146

Category: Procedural and other rulings
Parties: Regina
NSW Commissioner of Police
Abdallah Hassan Al Batat
Ying Cheng Luo
Ian Fan
Jaiyu Liu
Jacob Blake Bayliss
Nai An Li
Representation:
Counsel:
P Hogan (Crown)
R Bhalla (Commissioner)
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)
Crown Solicitor’s Office (Commissioner)
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): 2018/242293; 2018/214586 (Al Batat)
2017/170943; 2018/380808 (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)

Senior Counsel for Mr Al Batat has made an application that I make a direction pursuant to the provisions of the Criminal Procedure Act 1986 (NSW), to the effect that the New South Wales Police Force and the officers-in-charge of the investigation in the matter involving Mr Al Batat and the five other co-accused, be prohibited from serving on the solicitors for the accused any additional material, either that the police think might be tendered in the trial or by way of disclosure of material that should be disclosed.
We have spent the last three hours of court time debating whether the Court should exercise its power under s 146 to refuse to allow the prosecution to admit evidence relating to the telephone records said to be associated with Mr Al Batat, because, in spite of countless orders by this Court for full disclosure, and countless…

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 4)

Details

AGLC: R v Al Batat (No 4) [2020] NSWSC 1076
Case: [2020] NSWSC 1076
Decision Date: 14 August 2020

CaseChat Overview and Summary

In this matter, Al Batat was the respondent and the Commonwealth of Australia was the applicant. The dispute was centred on the procedures of the criminal law, specifically the service of voluminous material by police to the respondent, without the Prosecutor being first provided with the material. The matter was heard in the Federal Court of Australia. The court was required to decide whether the police were justified in serving such voluminous material to the respondent and whether the court should intervene to ensure the trial proceeded fairly.

The court held that the police had acted in breach of case management orders by serving the material directly to the respondent without first providing it to the Prosecutor. The court emphasised that the police are required to adhere to the case management orders, which are designed to ensure a fair trial. The court also noted that the material served was voluminous and had not been filtered, which added to the unfairness of the situation. The court concluded that the police's actions had the potential to prejudice the respondent's right to a fair trial and ordered them to desist from serving further material directly to the respondent.

The court further held that the Prosecutor should be provided with the material before it is served to the respondent. This would allow the Prosecutor to filter the material and ensure that only relevant and necessary information is provided to the respondent. The court also noted that the pre-trial arguments were proceeding, and the trial was imminent. The court made case management orders to ensure that the trial proceeded fairly and that the respondent's right to a fair trial was protected. The court ordered the police to desist from serving further material directly to the respondent and to provide the material to the Prosecutor first. The court also ordered that the Prosecutor should filter the material before providing it to the respondent. The court further ordered that the trial should proceed as scheduled, and that the parties should continue to comply with the case management orders.

Orders