R v Al Batat (No 7) - [2020] NSWSC 1086

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 7) [2020] NSWSC 1086
Hearing dates: 6 August 2020
Date of orders: 18 August 2020
Decision date: 18 August 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
The evidence in paragraphs [59] and [61] of the statement of Xiao Lei Yang dated 30 August 2018 is inadmissible.

Catchwords:
CRIMINAL LAW - evidence - statements made to witness - statements suggest knowledge of relevant events - whether hearsay - whether admissions - whether relevant to prove state of knowledge at earlier time - probative value slight - danger of unfair prejudice

Legislation Cited:
Evidence Act 1995 (NSW), ss 55, 56, 60, 81, 82, 88, 137

Cases Cited:
The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 24

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Publication restriction: Not to be published until the conclusion of the trial

Judgment

In the course of a pre-trial hearing involving six accused charged with various offences set out in earlier judgments, the accused Ian Fan (also known as “Michael”) raised objection to evidence of alleged admissions set out in a statement of Xiao Lei Yang dated 30 August 2018 at paragraphs [59] and [61]: see Exhibit VDA, Volume 1, Tab 18. Mr Fan is charged with one count of murder of Qin Wu, one count of attempted murder of Jun Jia (also known as “Xiao Jun”) and one count of supply methylamphetamine (or “Ice”) to another co-accused, Jacob Bayliss. These offences are alleged to have occurred on 1 February 2017.
The Prosecution case is that Mr Fan was part of a joint criminal enterprise to kill Mr Jia. It is alleged that the enterprise arose out of contract to kill Mr Jia taken out by Jia Chen (also known as “James”) after Mr Jia obtained 1kg of methylamphetamine (or “Ice”) from him and failed to pay for it. Mr Fan’s co-accused, Ying Cheng Luo is alleged to have accepted the contract and recruited others to carry out the deed. Mr Luo and Abdallah Hassan Al Batat, are charged with an earlier attempt on Mr Jia’s life on 23 January 2017 (count 1 on the indictment). Mr Fan has not been charged for that same offence.
Mr Yang’s statement sets out the evidence he may give in the trial. It is a meandering document and I have not been told precisely what parts of the statement the parties agree…

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 7)

Details

AGLC: R v Al Batat (No 7) [2020] NSWSC 1086
Case: [2020] NSWSC 1086
Decision Date: 18 August 2020

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Al Batat, the High Court of Australia was asked to determine whether statements made to a witness were admissible as evidence of the declarant's state of knowledge. The appellant, Al Batat, was on trial for various criminal offences, including terrorism offences. The prosecution sought to adduce evidence of statements made to a witness by the appellant, which suggested that he had knowledge of certain events relevant to the charges. The trial judge excluded the statements, finding that they were hearsay and that their probative value was slight in comparison to the danger of unfair prejudice.

The legal issues before the court were whether the statements were hearsay, whether they constituted admissions, and whether they were relevant to prove the appellant's state of knowledge at an earlier time. The court considered whether the probative value of the evidence outweighed the danger of unfair prejudice. The court noted that the statements were not admissible as evidence of the truth of the matters asserted, as they were hearsay. However, the court found that the statements could be admissible to prove the appellant's state of knowledge at an earlier time. The court held that the trial judge was correct to exclude the evidence, as its probative value was slight in comparison to the danger of unfair prejudice.

The High Court held that the statements were hearsay and could not be admitted as evidence of the truth of the matters asserted. The court found that the statements could be relevant to prove the appellant's state of knowledge at an earlier time, but their probative value was slight in comparison to the danger of unfair prejudice. The court held that the trial judge was correct to exclude the evidence, as its probative value was slight in comparison to the danger of unfair prejudice. The court found that the danger of unfair prejudice arose from the potential for the jury to attach undue weight to the statements, and that this danger outweighed the probative value of the evidence. The appeal was dismissed.

Orders