R v Al Batat & Ors (No 10) - [2020] NSWSC 1107

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Al Batat & Ors (No 10) [2020] NSWSC 1107
Hearing dates: 18 August 2020
Date of orders: 21 August 2020
Decision date: 21 August 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) The evidence in paragraph [99] of Wai Li’s statement dated 1 May 2019 is not admissible against Mr Liu.

Catchwords:
CRIMINAL LAW – evidence - hearsay - admissions -whether admissible against co-offender - admissions made with authority - co-conspirators rule - where co-accused’s statements attribute shooting to applicant - makeshift Buddhist temple - scope of common purpose - whether statement made in furtherance of common purpose - whether common purpose extends to desire not to be detected - logical extension of prosecution submission that post-offence statements admissible in every case - not the law - evidence inadmissible

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

Cases Cited:
R v Al Batat & Ors (No 8) [2020] NSWSC 1095
R v Al Batat & Ors (No 9) [2020] NSWSC 1101

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

This judgment relates to an objection taken by the accused, Jiayu Liu, and should be read alongside a judgment published on the same day and known as R v Al Batat (No 9) [2020] NSWSC 1101 which raises a similar issue concerning the scope of the exception to the hearsay rule governed by s 87 of the Evidence Act 1995 (NSW) and the common law co-conspirator’s rule.
Mr Liu objects to evidence the prosecution proposes to lead from a witness, Ms Wai Li (see MFI 53). The evidence is contained in paragraph [99] of Ms Li’s statement dated 1 May 2019: Exhibit VDA, Volume 1, Tab 9. The evidence concerns representations allegedly made to Ms Li by a co-accused Ying Cheng (“Johnny”) Luo. Ms Li was, on the prosecution case, a trusted friend and associate of Mr Luo. Mr Luo made an unsuccessful attempt to exclude the same evidence in his case, but on a different basis: see R v Al Batat & Ors (No 8) [2020] NSWSC 1095. As I said in the course of that ex tempore judgment, the context and content of the conversation suggests that it occurred on the day after the shooting on 1 February 2017 that gives rise to the relevant counts of attempted murder and murder against Mr…

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.

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Details

Case: [2020] NSWSC 1107
Decision Date: 21 August 2020

CaseChat Overview and Summary

The case of R v Al Batat & Ors (No 10) involved multiple defendants before the court, with the central issue being the admissibility of hearsay evidence, specifically admissions made by one co-accused against another in the context of a joint criminal enterprise. The court had to determine whether statements made by a co-offender could be admitted as evidence against the applicant, considering the principles surrounding admissions made with authority and the co-conspirators rule. The case revolved around a shooting incident that occurred in a makeshift Buddhist temple, and the extent to which the common purpose doctrine applied to statements made after the offence to avoid detection.

The primary legal issue was whether the statements made by one co-accused, attributing the shooting to the applicant, could be considered as evidence against the applicant. The court examined the scope of the common purpose doctrine and whether it extended to statements made to avoid detection. The prosecution argued that post-offence statements should be admissible in every case, but the court held that this was not the law. The court had to consider whether the statements were made in furtherance of the common purpose and whether the common purpose extended to the desire not to be detected. The admissibility of such evidence turned on these nuanced questions of legal interpretation and application.

The court found that the statements were not admissible as they did not fall within the established exceptions to the hearsay rule. The evidence was deemed inadmissible as it did not satisfy the requirements for admissibility under the co-conspirators rule. The court concluded that the prosecution's broad interpretation of the common purpose doctrine, which would allow for the admission of such post-offence statements in all cases, was incorrect. The evidence was therefore excluded from consideration in the trial.

The court’s decision resulted in the exclusion of the contested evidence from the trial proceedings. The final orders reflected the court’s determination that the statements made by the co-accused were not admissible against the applicant, thereby impacting the prosecution’s case against the applicant.

Orders