R v Al Batat & Ors (No 3) - [2020] NSWSC 1061

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 3) [2020] NSWSC 1061
Hearing dates: 4 August 2020
Date of orders: 14 August 2020
Decision date: 14 August 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1)   The evidence establishing that Mr Bayliss was in possession of about 42 grams of methylamphetamine on 2 February 2017 is admissible.
(2)   All other evidence arising out of his arrest on 2 February 2017 is inadmissible.
(3)   The evidence of the arrest of Mr Bayliss and the seizure of sundry items in a vehicle under his control on 14 February 2017, with the exception of the three firearms, is inadmissible.
(4)   The evidence of the seizure of the three guns on 14 February 2017 is not admissible as general circumstantial evidence or as rebuttal evidence.
(5) I direct that the notice requirement under s 97(1)(a) of the Evidence Act be dispensed with under s 100 subject to the following conditions:
(a) The Prosecutor is to file and serve a tendency notice in accordance with Regulation 5 of the Evidence Regulation 2015 (NSW) by 4:00pm on Monday, 17 August 2020.
(b)   The Prosecutor is to file and serve any additional written submissions on the issue by 4:00pm on Monday, 17 August 2020.
(6)   The resolution of the objections to the disputed text messages is set out in paragraph [55] of this judgment.
(7)   Subject to outstanding disputes regarding particular questions and answers, the electronically recorded interview dated 24 October 2017 is admissible.
(8)   I direct the parties to liaise with each other to determine, consistent with the contents of this judgment, whether there are any residual issues to be determined as to those parts of the electronically recorded interview to be tendered before the jury.

Catchwords:
CRIMINAL LAW – evidence - pre-trial objections - where accused charged with supplying guns - related drug deal - where guns used in shooting offences - where accused in possession of guns and drugs after the event - whether admissible - whether tendency evidence - submission stripped of verbiage - where no tendency notice given - possession of drugs directly relevant - possession of guns relevant only to prove tendency - notice requirements dispensed with on condition of provision of proper notice
CRIMINAL LAW - evidence - electronically recorded interview - where accused indicates he wished to consult with lawyer before answering questions - police offer to telephone lawyer - offer to persist with questioning - whether improper - whether unfair - evidence admissible
CRIMINAL LAW - evidence - relevance - text messages - probative value - unfair prejudice - rulings on communications with eleven associates

Legislation Cited:
Evidence Act 1995 (NSW), ss 55, 56, 90, 97, 98, 100, 101, 137, 138, 192
Evidence Regulation 2015 (NSW), reg 5
Firearms Act 1996 (NSW), s 4

Cases Cited:
BRC v R [2020] NSWCCA 176
Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
Gardiner…

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 1061
Decision Date: 14 August 2020

CaseChat Overview and Summary

The case of R v Al Batat & Ors (No 3) involved several accused individuals charged with serious offences related to the supply of firearms and participation in a drug-related transaction. The dispute centred on the admissibility of certain evidence in the trial, specifically the accused's possession of firearms and drugs after a related shooting incident, and text messages exchanged between the accused and multiple associates. The matter was heard in the Supreme Court of Victoria.

The primary legal issues revolved around the admissibility of evidence that was argued to have a tendency to prove a propensity of the accused to commit the crimes charged. Specifically, the court had to determine whether the possession of firearms and drugs post-incident was admissible and if it constituted tendency evidence. Additionally, the court considered whether proper notice had been given in accordance with the evidentiary rules, and whether the accused's decision to consult a lawyer before answering police questions rendered the subsequent evidence inadmissible.

The court ruled that the possession of drugs was directly relevant to the charges, while the possession of firearms was relevant only to prove a tendency. The court accepted that the evidence was probative, but weighed this against the potential for unfair prejudice. It was determined that the tendency evidence could be admitted provided that proper notice was given. The court held that the accused's decision to consult a lawyer before answering questions did not render the subsequent evidence inadmissible, as the police had offered to facilitate communication with the lawyer. The court also made findings on the relevance and probative value of text messages exchanged with multiple associates, ruling that they were admissible despite the volume of communications.

The final orders included the admission of certain evidence on the condition that proper notice was provided, and the exclusion of other evidence where the probative value was outweighed by the risk of unfair prejudice. The court's decision balanced the need for relevant evidence with the protection of the accused's rights, ensuring that the trial proceeded fairly and efficiently.

Orders