R v Al Batat (No 5) - [2020] NSWSC 1077

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Al Batat & Ors (No 5) [2020] NSWSC 1077
Hearing dates: 5, 6 August 2020
Date of orders: 18 August 2020
Decision date: 18 August 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1)   The evidence contained in the hearsay notice (Exhibit VDF) is inadmissible except for that encompassed by the direction in order (2);
(2) Pursuant to s 67(4) of the Evidence Act (NSW) 1995, I direct that s 65(2)(a) applies to evidence of the following representations made by Yehia Zakaria:
(a)   Mr Zakaria sold the vehicle “ages ago”.
(b)   He sold it to an “Asian guy”.
(c)   The Asian guy was described as “White shirt, grey shorts, sneakers, short black hair little bit medium hair still short, might have had glasses on".
(3)   The direction in (2) is conditional upon the Prosecution providing the accused with evidence relevant to the credibility and character of Yehia Zakaria including:
(a)   His criminal history.
(b)   The fact sheets relating to any matters on his criminal record.
(c)   Any relevant police holdings, including COPS entries and similar documents, relating to allegations of criminal conduct by Mr Zakaria.

Catchwords:
CRIMINAL LAW - evidence - hearsay evidence - exceptions to hearsay rule - duty to make representations - whether owner under obligation - whether LEPRA creates a duty for the purpose of s 65(2)(a) of the Evidence Act - meaning of owner - nature of duty - relevance of common law authority
CRIMINAL LAW - evidence - exceptions to hearsay rule - circumstances giving rise to high degree of probability that representations are reliable - contradictory versions of “the whole truth” - suspicion of malfeasance

Legislation Cited:
Evidence Act 1995 (NSW), ss 65, 67, 165, 192
Evidence Act 2011 (ACT), s 65
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3, 14, 17
Road Transport Act 2013 (NSW), ss 4, 8, 10, 64
Road Transport (General) Act 1999 (ACT), ss 58, 60

Cases Cited:
Conway v The Queen [2000] FCA 461; (2000) 172 ALR 185
Munro v The Queen [2014] ACTCA 11
R v Ambrosoli (2002) NSWLR 603; [2002] NSWCCA 386
R v Keir (No 2) [2016] ACTSC 394
R v O'Meally [1952] VLR 499

Texts Cited:
Stephen Odgers, “Uniform Evidence Law” (15th Edition, Lawbook Co, 2020)

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): 2018/242293; 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

Judgment

Abdallah Hassan Al Batat is…

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 5)

Details

AGLC: R v Al Batat (No 5) [2020] NSWSC 1077
Case: [2020] NSWSC 1077
Decision Date: 18 August 2020

CaseChat Overview and Summary

The case involved the defendant, Al Batat, who was charged with various criminal offences including drug trafficking. The dispute centred around the admissibility of hearsay evidence obtained from a recording made by a police officer. The case was heard in the Supreme Court of New South Wales. The key legal issue was whether the hearsay evidence was admissible under section 65(2)(a) of the Evidence Act 1995 (NSW), which provides an exception to the hearsay rule for representations made by a person under a duty or obligation to make the representation.

The court examined whether the Land and Environment Court of New South Wales (LEC) created a duty for the purposes of s 65(2)(a). The court noted that the term 'owner' and the nature of the duty required by the section were central to the issue. The court considered the common law authority and concluded that the LEC did not create such a duty. The court also considered the circumstances under which the hearsay evidence was recorded, including contradictory versions of events and the possibility of malfeasance. The court found that the circumstances did not give rise to a high degree of probability that the representations were reliable.

Ultimately, the court determined that the hearsay evidence was inadmissible under s 65(2)(a) of the Evidence Act. The court's decision was based on the absence of a duty or obligation to make the representations and the unreliable nature of the evidence. The court emphasised the importance of ensuring the reliability of hearsay evidence before admitting it in court. The court's decision had significant implications for the admissibility of hearsay evidence in similar cases.

Orders