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 v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 Plevac v R (1995) 84 A Crim R 570 R v Al Batat and Ors (No 1) [2020] NSWSC 967 R v Ngatikaura [2006] NSWCCA 161 R v Taleb [2019] NSWSC 241 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)