R v Al Batat (No 9) - [2020] NSWSC 1101

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 9) [2020] NSWSC 1101
Hearing dates: 6 August 2020
Date of orders: 21 August 2020
Decision date: 21 August 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
Evidentiary rulings made – see paragraph [61]

Catchwords:
CRIMINAL LAW - evidence - admissions made with authority - co-conspirators rule - common purpose to murder - where one offender makes admissions to a witness criminal concerned in events - whether admissible against co-accused - hearsay - admissions - whether statements made in furtherance of common purpose - scope of common purpose - whether extends to common purpose to avoid detection

Legislation Cited:
Evidence Act 1995 (NSW), ss 59, 81, 82, 87

Cases Cited:
Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
Higgins v R [2020] NSWCCA 149
Landini v New South Wales [2007] NSWSC 259
R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127
R v Macraild (Court of Criminal Appeal (NSW), 18 December 1997, unrep)
R v Scott Alan May (No 2) [2008] NSWSC 595
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22

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Publication restriction: Not to be published until the conclusion of the trial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

This is one of a number of judgments arising out of a pre-trial hearing currently taking place before the empanelment of a jury in the trial of six men charged with various offences related to some gangland or drug related shootings that occurred in early 2017. The accused, Ian Fan (also known as “Michael”), objected (inter alia) to nine discrete items of evidence contained in the statements of a witness known either as Witness B or Leonard Rivers (a pseudonym). [1] Originally 11 items of evidence were identified as being subject to similar objections. However, two of those objections were withdrawn. In each instance, the evidence relates to statements or conduct by a co-accused, Ying Cheng Luo (also known as “Johnny” Luo) as reported by Mr Rivers. The Prosecution presses the evidence under the so called “co-conspirator’s rule” and its statutory equivalent in s 87 of the Evidence Act 1995 (NSW).
1. R v Al Batat & Ors (No. 1) [2020] NSWSC 967.
In a nutshell, the Prosecution alleges that the target of the shootings (Jun Jia or “Xiao Jun”) obtained 1 kg of methylamphetamine (Ice) from some drug dealers…

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 9)

Details

AGLC: R v Al Batat (No 9) [2020] NSWSC 1101
Case: [2020] NSWSC 1101
Decision Date: 21 August 2020

CaseChat Overview and Summary

In the case before the court, the appellant and his co-accused were charged with murder, conspiracy to murder, and related offences. The case involved the death of a person, with evidence pointing to the involvement of both the appellant and his co-accused. The appellant argued that statements made by his co-accused to a third party, who was involved in the events leading up to the death, were inadmissible hearsay and should not be considered against him. The appellant contended that the statements were not admissions made with authority and did not fall within the co-conspirators rule, as they were not made in furtherance of a common purpose to commit murder but rather to avoid detection.

The central legal issue before the court was whether the statements made by the co-accused to the third party were admissible against the appellant under the co-conspirators rule, and whether they were made in furtherance of a common purpose that included a purpose to avoid detection. The court had to determine the scope of the common purpose and whether it extended to a purpose to avoid detection, and if so, whether this was sufficient to render the statements admissible under the co-conspirators rule.

The court found that the statements made by the co-accused to the third party were indeed in furtherance of a common purpose that included a purpose to avoid detection. The court held that the common purpose extended beyond the initial purpose to commit murder and encompassed the subsequent efforts to evade detection and prosecution. The court found that the statements were made in furtherance of this broader common purpose and were therefore admissible against the appellant under the co-conspirators rule. The court further held that the statements were admissions made with authority, as they were made to a party who was involved in the events leading up to the death. The appellant's argument that the statements were inadmissible hearsay was therefore rejected.

The court's decision upheld the conviction of the appellant and his co-accused on all charges. The court found that the evidence, including the admissible statements, was sufficient to prove the charges beyond reasonable doubt. The appellant's appeal against conviction was therefore dismissed.

Orders