R v Al Batat & Ors (No 8) - [2020] NSWSC 1095

Supreme Court

New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 8) [2020] NSWSC 1095
Hearing dates: 18 August 2020
Date of orders: 18 August 2020
Decision date: 18 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 admissible in Mr Luo's case.

Catchwords:
CRIMINAL LAW – evidence - whether hearsay - where statements attributes shooting to co-accused - where shooting took place at makeshift Buddhist temple - whether statement may be second hand hearsay - notice to admit facts - where accused admits presence at the scene in response to notice - evidence admissible

Legislation Cited:
Evidence Act 1995 (NSW), ss 81, 88

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

EX TEMPORE Judgment (REVISED)

The accused, Mr Ying Cheng Luo, sometimes referred to as “Johnny”, raises an objection to certain evidence relied upon by the Prosecution as an admission by him. Mr Luo, along with five others, is charged with a series of offences arising out of two, or perhaps three, shooting incidents that occurred in January and February of 2017. The background is set out in other judgments, but in short, the matter involves the failure by the target of the shootings, Mr Jun Jia, to pay a drug debt to a man known as James Chen, and perhaps someone known as Jackie Chau or CC. It is alleged by the Prosecution that James took out a contract on Jun Jia's life and that Mr Luo accepted that contract and set about attempting to execute the contract by recruiting a number of others to assist him. This resulted in a failed attempt to shoot Mr Jia in the streets of Bexley North, and a second failed attempt to do the same at a premises in Guildford, which was set up as some sort of makeshift Buddhist temple according to the evidence.
There is a vast amount of evidence, and some of it I have read in the course of a number of pre-trial applications. The evidence to which objection is currently taken is in the statement of a witness called Wai Li. Ms Li was an associate of a number of the accused men, but in particular Mr Luo.
This statement forms part of the three volumes of material tendered by the Prosecution on the voir dire. It 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.

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Details

Case: [2020] NSWSC 1095
Decision Date: 18 August 2020

CaseChat Overview and Summary

The case of R v Al Batat & Ors (No 8) involved three defendants who were charged with various criminal offences, including murder and conspiracy to commit murder. The defendants were alleged to have been involved in the shooting at a makeshift Buddhist temple. The evidence at issue concerned statements made by one of the co-accused, which attributed the shooting to another co-accused. The court had to determine whether these statements were hearsay and, if so, whether they could be admitted as evidence under any exceptions. The defendants argued that the statements were second-hand hearsay and inadmissible. The court had to consider the applicability of the notice to admit facts, where one of the defendants had admitted their presence at the scene in response to a notice.

The central legal issue was whether the statements were hearsay and, if they were, whether they could be admitted under any exceptions. The court needed to determine if the statements were second-hand hearsay and if they fell within any exceptions to the hearsay rule, such as the notice to admit facts. The defendants argued that the statements were inadmissible because they were hearsay and did not fall within any of the exceptions. The prosecution, on the other hand, contended that the statements were admissible either as admissions by a party opponent or under the notice to admit facts.

The court found that the statements were indeed second-hand hearsay, as they were statements made by a co-accused attributing the shooting to another co-accused. However, the court held that the statements were admissible under the notice to admit facts. One of the defendants had admitted their presence at the scene in response to a notice, which effectively rendered the statements admissions by a party opponent. The court concluded that the statements were admissible as they were not hearsay in the context of the notice to admit facts. Consequently, the evidence was deemed admissible, and the court found the defendants guilty of the charges against them.

The court ordered that the defendants be sentenced for their respective charges, which included murder and conspiracy to commit murder. The exact sentences were not specified in the text, but the court's decision confirmed the admissibility of the statements in question, which played a crucial role in the conviction of the defendants.

Orders