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)

1. 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.

2. 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.

3. This statement forms part of the three volumes of material tendered by the Prosecution on the voir dire. It is a statement dated 1 May 2019: see Exhibit A, Volume 1, Tab 9. From about paragraph [96], Ms Li describes the events and interactions she had on the day before and the day of the shooting with another potential witness called Ada Chan. We heard from Ms Chan earlier on the voir dire, but her evidence is not important in the present context.

4. Ms Li describes communication she had on what is, on my reading of it, unquestionably the day after the alleged shooting on 1 February 2017. She discusses her communications with Ada and her baby-sitter's son, Daniel, who was asking her if she knew anything about an incident the night before during which somebody had died. After she spoke with the baby-sitter's son, she says in paragraph [99]:

“After I spoke to Daniel on the phone, I sent a message to Johnny on WeChat and asked him what happened last night, as the person who got killed had nothing to do with the dispute involving Ada. At first Johnny sent a message saying 'ummm?' and pretended like he didn't know. I sent another message to Johnny saying 'it’s impossible you don't know I have been told by others'. Johnny then sent me a message saying words to the effect of 'Dayu he’s sick, he took out the gun and shot within minutes after they started to talk. He was going to kill Xiao Jun, but he killed the deceased (I don't know the name Johnny used for the deceased) by mistake’…”

5. It is accepted that "Johnny" is a reference to Mr Luo; "Dayu" is a reference to Mr Liu; and "Xiao Jun" is another name for Jun Jia.

6. Ms Li said she used her Apple iPhone to have the conversation on WeChat and that the phone was the same one taken by police when she was arrested. She acknowledges that she "might have deleted these messages but I'm not entirely sure". As I understand it, the messages themselves are not available, if, indeed, they exist or ever existed, but the evidence will be adduced by the Prosecution out of the words or mouth of Wai Li.

7. The objection is essentially a hearsay objection. In short, Mr Luo submits that it cannot be established that the critical statement, that is "Dayu he’s sick, he took out the gun and shot within minutes… He was going to kill Xiao Jun but he killed the deceased", was information that Mr Luo, assuming he said anything like this, came by through second or third-hand sources. The accused notes that there appeared to be an unknown delay between the messages. It may be that in the time between the shooting incident and this WeChat exchange, or even during the currency of the WeChat exchange, that Mr Luo obtained information from others, so that the material or statements that he made could be second, third or fourth-hand hearsay. If that were the case, it is submitted (correctly) that this evidence would not be admissible in Mr Luo’s trial.

8. In response to the objection, the Prosecution submits that the concern about whether the information comes second-hand, is readily met by reference to admissions that have been made by Mr Luo in a Notice to Admit Facts filed in the course of some case management interactions before the trial came to the stage of pre-trial in late July of this year.

9. The Notice to Admit Facts included admissions as to where the various accused were and whether they admitted to being where the Prosecution says they were at relevant times. As I have said, the shooting took place in Guildford. In fact, it took place at 5 Kennedy Street in Guildford. The Notice to Admit Facts (relevantly) says this, "The accused admits that he was at the following locations on the nominated dates". There is then a series of Roman numerals. At (xii) the Notice reads:

"On 1 February 2017 at 5 Kennedy Street in Guildford (Weng's Residence)."

10. There are admissions by other accused as to their presence at that scene, including Mr Liu, but I will put that aside for the time being. What is clear is that the shooting took place at those premises and that Mr Luo's case is that he was present at those premises.

11. Section 81 of the Evidence Act provides an exception to the hearsay rule. That section is in the following terms:

81 Hearsay and opinion rules: exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation--

(a) that was made in relation to an admission at the time the    admission was made, or shortly before or after that time, and

(b) to which it is reasonably necessary to refer in order to understand    the admission.

Note: Specific exclusionary rules relating to admissions are as follows--

• evidence of admissions that is not first-hand (section 82)

• use of admissions against third parties (section 83)

• admissions influenced by violence and certain other conduct (section 84)

• unreliable admissions of accused persons (section 85)

• records of oral questioning of accused persons (section 86)

…

12. Section 88 of the Evidence Act then provides:

“For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.”

13. I am satisfied, based on the admissions made in the Notice to Admit Facts and on what I understand to be other evidence putting Mr Luo at the scene, that the evidence of Ms Li is capable of amounting to an admission. I am satisfied that this amounts to an admission at least as to Mr Luo's state of knowledge, but, more particularly, an admission as to:

• his presence at the scene;

• his awareness of the alleged actions of his co-accused, Mr Liu;

• his awareness of the intention of Mr Liu, that is to shoot Jun Jia, but that he accidentally shot Mr Qin Wu; and

• also inferentially that he, Mr Luo, was part of a common purpose or joint criminal enterprise to do just that.

14. In those circumstances, the evidence is relevant (there was no suggestion otherwise) and also falls within the exception to the hearsay rule as an admission, as contemplated by s 81 of the Evidence Act.

15. No particular submissions were directed to the question of discretionary or mandatory exclusion pursuant to s 135 or s 137 of the Evidence Act, although it was submitted that the dangers of the evidence could not be cured by direction. I am unable to accept that submission. The evidence, if I am asked, will be subject to firm directions and warnings under s 165 as to admissions and/or hearsay. There is no basis that I can see to invoke the operation of either s 135 or s 137 to result in the exclusion of the evidence.

16. For those reasons, I rule that the evidence in paragraph [99] of Wai Li’s statement dated 1 May 2019 is admissible in Mr Luo's case.

17. I note that there is an outstanding objection on behalf of Mr Liu in relation to the same evidence which is yet to be determined.

**********

Decision last updated: 25 November 2020