R v Al Batat & Ors (No 2) [2020] NSWSC 992

Supreme Court New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 2) [2020] NSWSC 992 Hearing dates: 20 – 24 July 2020 Date of orders: 31 July 2020 Decision date: 31 July 2020 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: (1) The application by Ian Fan for a separate trial from Ying Cheng Luo is refused. (2) The application by Ying Cheng Luo for severance of count 5 is refused. (3) Count 2 is to be severed from the indictment. (4) The alternative application by Ying Cheng Luo for a separate trial is refused. Catchwords: CRIMINAL LAW – separate trials – joint trial of six accused – multiple shooting incident – joint criminal enterprise – where one accused makes admission implicating another – not admissible against co-accused – whether jury can be instructed to disregard evidence – where Prosecutor offers to lead admission without reference to co-accused – plural pronouns – whether risk of prejudice too high – where counsel for accused agrees not necessary to lead evidence in plural form - assessment of risk to co-accused's trial – soothsaying CRIMINAL LAW - severance - multiple shooting offences arising out of drug deals - joint criminal enterprise - connection between offences - where one count involving single offender shooting at dwelling - whether sufficiently connected to joint criminal enterprise concerning remaining counts - prejudice to two accused by inclusion of count - whether capable of cure by direction CRIMINAL LAW - separate trials - where one accused will rely on violent disposition of co-accused - issue not raised in submissions on separate trials - discombobulating discussions with counsel Legislation Cited: Criminal Procedure Act 1986, ss 21(2), 29, 128 Evidence Act 1995 (NSW), ss 97, 137 Cases Cited: Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 (2011) 209 A Crim R 424 El Zayet v The Queen; Aouad v The Queen; Darwiche v The Queen; Osman v The Queen [2011] HCATrans 342 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 R v Iskandar [2011] NSWSC 1192 R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep) R v Pham [2004] NSWCCA 190 R v Roff [2015] NSWSC 1853 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)