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)

1. 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.

2. 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 requests by Mr Al Batat's lawyers, the material was not served until something like three weeks into the pre-trial hearing, and after it was anticipated that a jury would be empanelled.

3. The evidence in the trial as disclosed to the parties includes many thousands of pages and each of the accused is represented, as I see it, by one solicitor and one barrister. The prosecution, in a sense, is in an even worse position, because to deal with all of those matters, they have just one barrister and two solicitors.

4. The application is based on the fact that the material comes to the defence completely unfiltered with no indication whether or not it is to be relied upon. Most recently a USB stick or thumb drive was provided with many hundreds of pages, if not thousands of pages of telephone records, the relevance of which was not clear. Many of which appeared to be, and I base this on what Senior Counsel tells me, related to phone numbers that have little or nothing to do with the case, or their relevance is unclear.

5. Each of the lawyers involved in the case is doing their best to maintain some sort of a grip on the volumes of material and it is unquestionably reasonable that an order such as this be made. I have questioned the power I have to stop the police from serving the material, but have ultimately come to the conclusion that a court must be able to control its process. The officers-in-charge of the case have been in court most days, they are aware of the problems that have been complained about. They can go to the solicitor for the Director of Public Prosecutions who is instructing the Prosecutor in order to provide the material and then the prosecution can make decisions as to whether it needs to be disclosed by way of disclosure or whether he may even be brave enough to attempt at this stage to tender the material in spite of its late service, completely contrary to orders of this Court and things that have been said to the Local Court and to this Court about the brief having already been served.

6. Having heard the arguments of Senior Counsel for Mr Al Batat, each of the lawyers or counsel for the other accused supported the application and the Prosecutor indicated that he could not, in the circumstances, be heard against an order of that nature.

7. Accordingly, I make the following orders in the nature of further case management orders:

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.

**********

Decision last updated: 25 November 2020