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) 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 Judgment 1. The accused, Jacob Bayliss, who is sometimes referred to by the nickname "Shiv", is about to stand trial with five other men in relation to a number of criminal offences that were allegedly committed in January and February of 2017. Mr Bayliss is charged with two counts alleging that he supplied firearms on 1 February 2017. These are counts 3 and 4 on the indictment currently before the Court on the pre-trial hearing. I have already ruled that count 2 (involving the shooting up of a house) must be severed from the indictment. [1] The counts against Mr Bayliss will presumably become counts 2 and 3 on the indictment presented before the jury. The Prosecution alleges that in the course of the same transaction, Jaiyu Liu, Ying Cheng Luo and Ian Fan supplied Mr Bayliss with a quantity of methylamphetamine. This is count 5 on the present indictment and will presumably become count 4. The transaction or transactions allegedly took place at an apartment in Burwood on 1 February 2017. It is the Prosecution case that the two firearms supplied by Mr Bayliss were later used in the murder of Qin Wu and attempted murder of Jun Jia (currently, counts 6 and 7). 2. In the course of the pre-trial hearing, Mr Bayliss objected to four discrete aspects of the evidence proposed to be adduced by the Prosecution. His objections related to the following matters: 1. A vehicle stop and arrest for unrelated matters on 2 February 2017; 2. Mr Bayliss' arrest for unrelated matters on 14 February 2017; 3. The seizure of mobile phones on 14 February 2017 and communications (text messages) found on those devices with various others; and 4. An electronically recorded interview (ERISP) dated 24 October 2017. 1. The relevant evidence was tendered on the voir dire as part of three volumes of Prosecution material (Exhibit VDA). A DVD of the ERISP was also tendered: Exhibit VDD. 2. Mr Bayliss objects to the evidence in items (1) – (3) on the grounds that they are not relevant (s 56 of the Evidence Act 1995 (NSW)) and in the alternative that the probative value of the evidence is outweighed by the danger of unfair prejudice (s 137 of the Evidence Act). The objection to the ERISP is based on the assertion that the evidence was improperly or illegally obtained pursuant to s 138 of the Evidence Act. Alternatively, it was submitted it would be unfair to admit the evidence (s 90) or that the probative value would be outweighed by the danger of unfair prejudice (s 137). Evidence of the vehicle stop and arrest for unrelated matters on 2 February 2017 1. On 2 February 2017, the day after Mr Bayliss is alleged to have supplied the firearms the subject of counts 3 and 4 on the indictment and obtained the drugs relevant to count 5, he was seated in the passenger seat of a car when it was stopped by police. The car was searched and a number of illicit drugs of varying quantities was discovered and seized. Police found 0.21 grams of cocaine, 2.57 grams of ephedrine, 2.31 grams of heroin, 41.91 grams of methylamphetamine, 3 MDMA tablets, 1 Valium tablet (diazepam) and 2 2C-B tablets. 2. Mr Bayliss seeks exclusion of the following documents relevant to this incident: 1. Statement of Robert MacDonald dated 16 October 2017; 2. Photos 1 – 16 introduced in the statement of Robert MacDonald; 3. Certificates of Tristan Geoffrey Berrett dated 23 February 2017; 4. Certificates of Richard Bugarin dated 31 March 2017; 5. Certificate of Adam Bortz dated 15 March 2017; and 6. ERISP dated 2 February 2017. 1. It was submitted that the arrest of the accused on 2 February is of no relevance to the matters for which he is charged on the indictment – that is, the supply of firearms a day or so earlier. In the alternative, it was submitted that the evidence is of "little probative value" and the danger of unfair prejudice outweighs the probative value of the evidence: see s 137 of the Evidence Act. 2. Section 55 of the Evidence Act states that evidence is relevant where (if accepted), "it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". 3. Mr Bayliss submits that the evidence is not relevant, because there is nothing, apart from the obvious temporal coincidence, connecting the drugs found in the car with the drugs allegedly received the day before. Counsel took further issue with evidence (for example, images of various drugs in packages and bundles of money found in the car (Exhibit VD5)) that could suggest Mr Bayliss' involvement in drug supply. It was submitted: "There is a prejudice that flows from this evidence, given the nature and the variety of drugs ... that are found by police, which are, in my respectful submission, suggestive of the accused being a drug supplier. And noting also that the accused is not charged with ‑ well, the main offences that the accused faces in this particular trial are supply firearms, not supply of drugs." 1. The Prosecutor submitted that evidence of the vehicle stop and search and the arrest of Mr Bayliss is relevant because: "…it is open to the jury to conclude that the drugs that he had, the 42 grams or 41.9 grams on 2 February are the 2 ounces, so 56 grams that he had been supplied on 1 February, less whatever he had already sold in between, being in Sydney to receive those drugs and being stopped by police on the Central Coast on the 2nd. That is how the interrelationship [of the supply of drugs by Liu, Fan and Luo and the supply of firearms by Bayliss] works, that the possession of drugs on 2 February, the Crown says makes it more likely that, firstly, the drugs were supplied to him on 1 February and, secondly, that he supplied the guns as part of the one transaction, consistent with what Martina Sellers' evidence is." 1. The Prosecutor did however concede that "the only relevant part of the drugs that were found in the car was the 41.9 grams of methylamphetamine". The Prosecutor submits that this is because: "…on whatever basis the guns were handed over, the Crown says it is open to the jury to conclude it was part of the same transaction that involved the supply of drugs, so proof of one would be relevant to proof of the other." 1. The Prosecutor submitted that the prejudice which may arise from the evidence could be limited, or eliminated, by seeking to adduce evidence only of the methylamphetamine found in the car (not the other drugs). Consideration and conclusion 1. A fact in issue at the trial is whether Mr Bayliss supplied guns to his co-accused Luo, Fan and Liu. The supply of guns allegedly took place at the same place and at about (or precisely) the same time as those three co-accused men supplied Mr Bayliss with a quantity of methylamphetamine. Whether the transaction involved the trade of guns for drugs, or two discrete exchanges of items, or some combination of the two, the transactions were part of the same event. It happened at the same time and place and involved the same participants. The evidence that Mr Bayliss was in possession of 42 grams of methylamphetamine the day after he was allegedly supplied by his co-accused with "2 ounces" (around 56 grams) of that drug is relevant to a fact in issue, namely the nature of the transaction (if any) that took place between Mr Bayliss and Messrs Luo, Fan and Liu on 1 February 2017. 2. Any potential prejudice in the admission of the evidence can be cured by a direction that Mr Bayliss is not charged with any drug offence, that the evidence cannot be used in a prejudicial manner and by explaining the limited way in which the location of the methylamphetamine can be used against Mr Bayliss. 3. The finding of other sundry drugs and the indicia of drug supply (including the quantity of cash) in the car is not relevant or, even if it were, its probative value is outweighed by the danger of unfair prejudice 4. Accordingly, my ruling on this aspect of Mr Bayliss' objection is: 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. Evidence of the arrest for unrelated matters, and Mr Bayliss's possession of three guns, on 14 February 2017 1. Mr Bayliss was arrested again on 14 February 2017 for unrelated matters concerning a stolen motor vehicle, possession of prohibited drugs and the possession of three firearms. Police attended a property in Springfield on 14 February in response to reports of a stolen car parked outside the premises. When police arrived, they searched the car and found a number of items, including illicit drugs and firearms as well as personal effects and documents issued in other peoples' names. 2. The following documents are relevant to this incident: 1. Statement of Kate McGrath dated 20 February 2017; 2. Photos 1 – 45 introduced in the statement of Kate McGrath; and 3. Expert certificate of Rubien Bayn Dalton relating to the firearms. 1. There is also evidence in an ERISP conducted on 24 October 2017 relevant to Mr Bayliss' possession and love of guns. 2. As to the guns located on 14 February 2017, the expert evidence concerning the firearms located in the car (Exhibit VD7) did not match the descriptions of the firearms allegedly supplied by Mr Bayliss on 1 February 2017. The description of those guns, which the Prosecution alleges were used in the murder and attempted murder later that day, was provided by Martina Sellers [2] in a statement dated 29 June 2017. The Prosecutor says it is no part of his case that the guns seized by police on 14 February were the same guns used in the murder. In the course of argument he agreed that he would go so far as to say they were not the same guns. 3. Counsel for Mr Bayliss submitted that "it is not a very pleasant picture that's presented by all of [the] evidence that is located in the car": "The overall picture… is that there is possession of firearms, drugs and certainly suggestions of some form of identity fraud that either is occurring or is about to occur. Noting of course, that a lot of the names that appear on all of documents, including certificates of registration, credit cards, driver licences, do not correspond to the victim in the matter who reported his car stolen." 1. Counsel submitted there is no logical connection between the arrest and seizure of the various items on 14 February 2017 and the offending alleged in counts 3 and 4 (the supply of guns on 1 February 2017). For a moment I will put to one side the location of three firearms. The possession of firearms raises different, and more difficult, questions. 2. Consistent with his approach to the evidence obtained in the course of the vehicle stop on 2 February 2017, the Prosecutor agreed that he could lead the evidence to minimise any potential for prejudice. In particular, it was suggested that the evidence could be led without reference to any of the items found in the car apart from the three firearms. Apart from that sensible approach, and leaving for determination the finding of the three firearms, I would not have admitted the other evidence discovered on 14 February 2017, including evidence potentially consistent with larceny, identity fraud and drug supply. That evidence is not relevant and, if I am wrong about that, its probative value is clearly outweighed by the danger of unfair prejudice. The jury may reason that Mr Bayliss is a thief, a drug dealer or a criminal and directions calculated to reduce the prejudice would serve to emphasise the evidence. For those reasons, the evidence is inadmissible. 3. The real, and difficult, question under this objection is the relevance and admissibility of the fact that three firearms were located in a place where the jury would be entitled to find that they were in Mr Bayliss' possession. 4. Reliance was placed on the Prosecution's concession that there is no direct link between the firearms discovered in the car on 14 February and those allegedly supplied on 1 February. It was submitted that the only way the jury could reason towards guilt was by engaging in impermissible tendency reasoning. No tendency notice has been served and in the course of oral submissions the Prosecutor eschewed any reliance on the evidence as tendency evidence. 5. As to the relevance of what he called a "piece of circumstantial evidence", the Prosecutor submitted: "… it is not engaging in tendency reasoning to say that a person who has in his possession firearms on 14 February is more likely to have supplied firearms on 1 February… [Mr Bayliss'] possession of firearms on 14 February is capable of rationally affecting the question of, was he a person who was in a position to supply firearms on 1 February?" 1. The Prosecutor continued: "That's why the Crown says, as a proposition of the capacity to rationally affect the existence of a fact in issue, possession of guns on 14 February makes it more likely that a person was in a position to supply guns on 1 February, and therefore makes it more likely in fact they did supply guns on 1 February." 1. In the course of oral submissions, I raised the High Court's decision in Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50. That case, decided before the introduction of the Evidence Act, held that evidence that the appellant and another man were previously involved in the drug trade was admissible in a drug importation trial because it was capable of rebutting a defence of "innocent association" between the same two men. I granted leave for the parties to provide additional written submissions on the admissibility of the evidence in the present case as rebuttal evidence and on the question of whether, if the evidence was admitted on that basis, directions were capable of eliminating the risk of the jury engaging in tendency reasoning. 2. The Prosecution's additional submissions embraced the reasoning in Harriman. The Prosecution confirmed its position in relation to tendency evidence: "The Crown does not seek to rely on the disputed evidence as tendency (or 'similar fact') evidence. The Crown submits that the evidence is admissible on a basis other than demonstrating a tendency to act in a particular way or to have a particular state of mind." 1. It will be seen that part of this submission – that "tendency evidence" is the equivalent of "similar fact" evidence – is misconceived. Similar submissions were made earlier in the written submissions: "Tendency evidence under the Evidence Act is a category of what was previously termed propensity evidence – however the concept of propensity evidence is wider than Tendency Evidence. In Harriman, it was acknowledged that propensity evidence was a broader concept than 'similar fact evidence' (what might now be termed Tendency Evidence) [see, for example, Toohey J at para 14]. That is, there are matters that might come within the concept of propensity evidence that are not Tendency Evidence (and thus do not attract the stricter tests for admissibility applicable to Tendency Evidence)." 1. Contrary to these submissions, the closest common law equivalent to tendency evidence (under s 97 of the Evidence Act) is "propensity evidence" and the Evidence Act equivalent of "similar fact evidence" is coincidence evidence (s 98 of the Evidence Act): see Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [13]; BRC v R [2020] NSWCCA 176 at [71] and [106]-[107]. 2. This confusion as to nature and use of the evidence highlights the difficulty of the question that now arises for determination. It also emphasises the potential confusion that the admission of the evidence may cause if it is adduced before the jury. Even so, the Prosecutor submits that there are two bases for the admission of the evidence for a non-tendency purpose. First, the evidence forms part of a circumstantial case because it is more likely that a person who had three guns in their possession on 14 February 2017 was more likely to have possessed guns (and thus be able to supply them) on 1 February 2017. Mr Bayliss' access to guns is capable of rationally affecting the question of whether the accused supplied guns on 1 February 2017. The definition of supply in the Firearms Act 1996 (NSW) includes having firearms in possession for the purpose of supply. [3] Secondly, Mr Bayliss denies that he supplied guns on 1 February 2017 and the evidence is admissible pursuant to Harriman as evidence capable of rebutting his defence. 3. In the written submissions filed after the argument, the Prosecutor went on to submit that, if I was of the view that the evidence was properly categorised as tendency evidence, I should dispense with the notice requirements (see s 100 of the Evidence Act) and admit the evidence as tendency evidence under s 97. 4. Counsel for Mr Bayliss submitted that the evidence "does not fit within the principles of Harriman" because "the proposed evidence does not demonstrate substantial participation by Jacob Bayliss in the supply of firearms which may support an inference of continued participation". Reliance was placed on the fact that the evidence related to events after the offence with which Mr Bayliss is charged and an exchange in the ERISP where Mr Bayliss said he had not had the firearms seized on 14 February for "very long". Counsel also referred to the fact that the text message about exchanging debt for guns related to Mr Bayliss receiving (not supplying) the guns in question. Consideration and conclusion as to admissibility of the evidence other than as tendency evidence 1. I am unable to accept the submissions of the Prosecutor that the evidence is admissible purely on the basis that it is "relevant" evidence or "circumstantial" evidence. If the evidence is relevant, it is relevant as tendency evidence. [4] That is, it is evidence of Mr Bayliss' character or a tendency that he had which is capable of proving that he had a tendency to act in a particular way. On each occasion, when the Prosecutor was asked to identify the way in which the evidence of possession of three guns two weeks after the alleged supply on 1 February 2017 informed the issues in the trial, the process of reasoning was, stripped of its verbiage, tendency reasoning as explained in cases such as Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 ("Elomar"). In Elomar the process of reasoning was explained as follows: "253. Tendency evidence is evidence tendered to establish that a person has or had a tendency to act in a particular way or to have a particular state of mind. It is evidence that is tendered in order to provide the foundation for an inference that, because the person has or had that tendency, it is more likely that he or she behaved in a particular way, or had a particular state of mind at a time or in circumstances relevant to the issues in dispute. … … 360. The process of reasoning is: • on an occasion or occasions other than an occasion in question in the proceedings a person acted in a particular way; • it can therefore be concluded or inferred that the person had a tendency to act in that way; • by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency." See also BRC v R [2020] NSWCCA 176 at [67]-[70] (Simpson AJA). 1. The evidence is not of the same character as the evidence admitted in Elomar. In that case, the evidence of the accused's interest in radical Islam and Jihad, established by his attendance at a Jihadi training camp, was held to be directly relevant to whether he entered into an agreement to commit a terrorist attack and intended that a terrorist act would be committed: at [367]. The Court explained the distinction between such reasoning and tendency reasoning: "368 … Proof that a person held a particular belief on one occasion does not prove that he had a tendency to have that belief. It proves that, on that occasion, he did have that belief. There is no reason to think that, if Moustafa Cheikho had a state of mind that supported violent Islamic Jihad in 2001-2002, he did not continue to have that state of mind up to and including the time of the alleged conspiracy. 369. If it could reasonably be inferred from the evidence of his attendance at the camp, and the nature of the camp, that he had a state of mind that favoured militant Islamic Jihad, it may equally be reasonably inferred that he continued to have that state of mind up to and beyond 2004. That is not tendency evidence and does not give rise to tendency reasoning." 1. Similarly, evidence that the accused had material on his telephone suggesting an interest in radical Islam was relevant other than as tendency evidence. The Court held: "474. These were not facts to be proved by tendency evidence. They were facts to be proved by inferences drawn from circumstantial evidence. The circumstances were the common possession of the extremist material, providing the foundation (or part of the foundation) for an inference that other activities of the appellants were undertaken in preparation for a terrorist act or acts. The evidence was relevant also as providing the foundation (or part of the foundation) for an inference that the various appellants agreed with each other appellant, and with the other alleged co-conspirators, to prepare for a terrorist act or acts." See also R v Taleb [2019] NSWSC 241 at [141]-[152]. 1. The circumstances (factual and legal) of Elomar are far removed from the circumstances of the present case. The decision was not referred to nor relied on by the Prosecutor. Mr Bayliss' possession of guns on 14 February 2017 does not, directly, give rise to an inference that he supplied guns two weeks earlier. If it gives rise to any such inference, it does so indirectly and by resort to tendency reasoning. This conclusion accords with the reasoning of the majority of the Court in R v Ngatikaura [2006] NSWCCA 161 at [66]-[69] (Simpson J as she then was) and [80]-[87] (Rothman J). 2. Nor is the evidence in the same category as that considered by the High Court in Harriman v The Queen. In Harriman, the evidence concerned the appellant's previous involvement in drug use and supply with the same co-accused which was used to rebut the defence that the pair went overseas together for an innocent purpose. In spite of having raised the case myself, I am unable to accept that the mere denial of the offence charge is sufficient to invoke the principle discussed in Harriman. This may be different if the incident on 14 February 2017 involved one or more of the same co-offenders. Is the evidence admissible as tendency evidence? 1. In its written submissions filed after the close of argument on the admissibility of the evidence of the seizure of three guns on 14 February 2017, the Prosecution raised for the first time an intention to rely on the evidence as tendency evidence. Those written submissions were meant to provide the parties with the opportunity to address the relevance, if any, of the High Court's decision in Harriman v The Queen. Having availed itself of that opportunity, the Prosecution went on to submit that if the evidence were properly categorised as tendency evidence, the Court should dispense with the relevant notice requirements and admit the evidence as tendency evidence. 2. In its written submissions, the Prosecution identified the relevant tendencies as "a tendency to possess guns" and "a tendency to exchange guns in lieu of debt". Apart from a brief articulation of the way in which the evidence might be used as tendency evidence, there was very little analysis of ss 97 and 101 and the myriad of case law on the subject. While the accused had an opportunity to respond to this change in course, that opportunity was limited. All that was really said in the written submissions in response was that the evidence did not overcome the hurdles in ss 97 and 101 of the Evidence Act. 3. In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, Gageler J (dissenting in the outcome) said at [105]: "Making the evaluative judgment required of a court in the implementation of the tendency rule is facilitated by the procedural requirement that a party must ordinarily give notice of an intention to seek to adduce tendency evidence. The utility of the tendency notice goes beyond providing procedural fairness to other parties. The tendency notice provides the court, at the critical time of assessing the admissibility of tendency evidence, with a statement of the particular tendency which the party seeking to adduce the tendency evidence seeks to prove by it. The importance of explicitly identifying in the notice the particular tendency that is asserted, as Howie AJ put it in Bryant v R, 'should be obvious: how else is the court going to be able to make a rational decision about the probative value of the evidence'. By identifying the particular tendency that the evidence is asserted to prove, the notice allows the court to evaluate the strength of the connection between the evidence and the tendency and the strength of the connection between the tendency and the fact in issue." 1. Other cases have emphasised the importance of the tendency notice in framing the issues to be determined by the trial Judge: see, for example, Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [128]-[131]. 2. Regulation 5 of the Evidence Regulation 2015 (NSW) provides: (1) A notice given under section 97 (1)(a) of the Act (a notice of tendency evidence) must be given in accordance with the requirements of this clause. (2) A notice of tendency evidence must state: (a) the substance of the evidence to which the notice relates, and (b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of: (i) the date, time, place and circumstances at or in which the conduct occurred, and (ii) the name of each person who saw, heard or otherwise perceived the conduct, and (iii) in a civil proceeding—the address of each person so named, so far as it is known to the notifying party. (3) On the application of a party in a criminal proceeding, the court may make an order directing a notifying party to disclose the address of any person named by that party in a notice of tendency evidence who saw, heard or otherwise perceived conduct or events referred to in the notice. (4) The direction may be given on such terms as the court thinks fit. 1. The state of the submissions is such that I am not in a position to make an informed ruling on the admissibility of the evidence as tendency evidence. Because of the way in which the issue has unravelled, the first question is whether the notice requirements should be dispensed with and, if so, on what terms. Should notice under s 97 be dispensed with? 1. I accept the Prosecutor's submission that, if the evidence was otherwise admissible as tendency evidence, the notice requirement under s 97(1)(a) should be dispensed with under s 100(1). Taking into account relevant matters under s 192 of the Evidence Act, the direction should be given. In particular: * Dispensing with the notice requirement will not unduly add to the length of the hearing. * Permitting the Prosecution to develop its argument that the evidence is admissible as tendency evidence will not be unfair to Mr Bayliss. He has been on notice that the relevant evidence was pressed by the Prosecution. The only change in circumstance is the basis upon which the evidence is to be led. Counsel for Mr Bayliss very properly conceded in argument that he could not point to any prejudice in allowing the Prosecution to rely on the evidence as tendency evidence rather than as general circumstantial evidence. * If the evidence is admissible under ss 97 and 101, it is likely to be important evidence in the case. * The nature of the proceedings, being the Prosecution for the supply of guns subsequently used (allegedly) in a gangland murder, militates in favour of permitting the Prosecution to proceed despite the absence of a proper tendency notice. * There is a power to adjourn the proceedings but that would disadvantage Mr Bayliss who is in custody pending the resolution of the present proceedings. 1. The direction under s 100(1) of the Evidence Act will be subject to conditions under s 100(5) as follows: 1. The Prosecutor is to file and serve a tendency notice in accordance with Regulation 5 by 4:00pm on Monday, 17 August 2020. 2. The Prosecutor is to file and serve any additional written submissions on the issue by 4:00pm on Monday, 17 August 2020. 1. Mr Bayliss will be provided with an opportunity to respond to these submissions before further oral argument on the issue. Rulings on the objection concerning the arrest of the accused on 14 February 2017 1. Accordingly, I make the following rulings: 1. 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. 2. The evidence of the seizure of the three guns on 14 February 2017 is not admissible as general circumstantial evidence or as rebuttal evidence. 3. 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: 1. 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. 2. The Prosecutor is to file and serve any additional written submissions on the issue by 4:00pm on Monday, 17 August 2020. Mobile phones seized on 14 February 2017 and communications with various people 1. On 14 February 2017, two mobile phones belonging to Mr Bayliss were seized by police. Text message conversations with a number of people were later found on those mobile telephones. Transcripts of the exchanges were tendered on the voir dire: see Exhibit VDA, Volume 3 (Tabs 77-85). In the course of argument, the Prosecutor indicated that he did not press all the messages included in the voir dire exhibits. Mr Bayliss objected to all of the messages on the basis that they were either not relevant or, if they were, that the probative value of the evidence outweighed its prejudicial effect. Different considerations apply to each of the exchanges but there were some general themes. 2. The messages fell into three general categories. 3. First, there were various messages in which Mr Bayliss said things that were, inferentially, if not clearly, references to the fact that on 2 February 2017 the police seized the drugs (methylamphetamine or "Ice") from him. Those messages are relevant. They are capable of supporting the Prosecution case that Mr Bayliss obtained drugs from Messrs Liu, Luo and Fan. It is open to the Prosecution to argue that if the drug deal took place, it is more likely that the supply of guns took place at the same time. There is no risk of unfair prejudice in their admission. 4. Second, there are messages that the Prosecution says may provide circumstantial support in relation to Mr Bayliss' movements during the relevant period and his connection to one or more of the co-accused. Provided the Prosecution establishes the foundational support for the inferences it will invite the jury to draw, I am satisfied this evidence is admissible and I will rule provisionally that it is admissible. 5. Third, there are messages that the Crown says are relevant to Mr Bayliss' possession of, and dealing with, firearms. I will deal with those matters individually but some are only relevant to support a tendency case and will turn on the outcome of the Prosecution's belated attempt to rely on the evidence as tendency evidence (as to which, see above). 6. Dealing with the various text message exchanges in turn, I make the following findings and rulings: 1. As to the text messages between the accused and Martina Sellers (Tab 77), the message referring to taking Ms Sellers "down to Sydney the other night" on 6 February 2017 is admissible. This is capable of supporting the attendance of the pair at the meeting where the guns and drugs were allegedly exchanged or supplied. 2. As to the messages between the accused and Shannon Wilkie on 7 February 2017 (Tab 78), the substance of the exchange is: "[BAYLISS] its shiv this is my no [WILKIE] Wats going on..? ? The cops got everything..? ? [WILKIE] Oi answer me fuk ya..? ? Keep me updated with the situation so im not stressing is all im asking bro..? ? [BAYLISS] Yea they got everything brother…. ill call u in 5" This evidence is admissible as it is capable of supporting the Prosecution case that the drugs obtained by the accused were seized by police. There is no unfair prejudice. 1. As to the messages between the accused and Bradley Pattenden on 8 February 2017 (Exhibit VD6), the Prosecution relies on a message that reads: "[BAYLISS] Wana do me a trade? Swap u the 5g for 12ie n 22semi? 2 n half g ea one? Ill put em to good use;)" This message is capable of being interpreted as a suggestion that drugs ("5g") be exchanged for guns ("22semi"). Because it occurred after the gun supply alleged in counts 3 and 4, it is not capable of supporting the Prosecution case on counts 3 and 4 other than as tendency evidence. Presumably it is this message that provides the foundation for the Prosecution's suggestion that the accused had "a tendency to exchange guns in lieu of debt". A ruling on this message is deferred until the parties properly address the question of whether the Prosecution will be permitted to adduce tendency evidence and the content of such evidence. 1. As to the messages between the accused and Mark Murray dated 8 February 2017 (Exhibit VD6), the relevant exchange includes: "Coppers got me for 15000 the ova day the cunts…. Im still collect debts so I can get back on… how u been anyway brother" The evidence is capable of giving rise to an inference concerning the supply of drugs on 1 February 2017 and their seizure the following day. That in turn affects the likelihood that guns were supplied by Mr Bayliss during the same meeting. The evidence is relevant and admissible. There is no risk of unfair prejudice. 1. As to the text messages between the accused and "Arps" dated 9-10 February 2017 (Tab 79), the exchange reads: "[BAYLISS] Arps its shiv. Need that 200 today coppers got me for 15000 da ova day… need coin to get on [BAYLISS] ? [BAYLISS] Sweet to grab that 100 n do u need any?" The first message is admissible for the same reason as the messages with Wilkie and Murray. However the second message creates a danger of unfair prejudice because it gives rise to the inference that Mr Bayliss was offering to supply drugs ("do u need any?"). This is not relevant and, if it is, its probative value is outweighed by the danger of unfair prejudice. 1. As to the text messages between the accused and Danielle Wilton dated 9 February 2017 (Tab 80), the meaning is obscure and the inferences the Prosecution seeks to draw are bordering on speculative. In essence, the Prosecution seeks to draw an inference that a reference to taking "a couple asian cunts to a couple place" may be a reference to the arrest of Mr Liu the previous day. The Prosecution seeks to put this evidence together with a message to Ryan Ritchie (see below) that there were "dramas in Sydney" and evidence Ms Sellers is expected to give that there was some suggestion that the guns supplied by Mr Bayliss on 1 February would be returned to him. The inference sought to be drawn is of very slight probative value and the potential for misuse (or the danger of unfair prejudice) is real. The exchange is inadmissible. 2. As to the text messages between the accused and Matty-Nelsons Bay dated 7 February 2017 (Tab 81), the reference to the "Coppers got me for 1500" is admissible. 3. As to the text messages between the accused and Richard Leslie dated 9 February 2017 (Tab 82), the message at 00:55:16 (message 766) that "I lost 15000 the other day" is admissible provided the following words (suggestive of drug supply) are deleted. The earlier messages (777-767) including the reference to "popn in wiv a shoty" suggesting the violent enforcement of a [drug] debt give rise to inevitable prejudice and will be excluded. 4. As to the text messages between the accused and David Catt dated 8 February 2017 (Tab 83), they would be admissible insofar as they refer to "I jus lost 15000". However, it is difficult to see how that can be excised from the inadmissible and prejudicial evidence surrounding it suggestive of the enforcement of [drug] debt. The safest course to avoid prejudice is to rule the evidence inadmissible and I do so. 5. As to the text messages with Ryan dated 9 February 2017 (Tab 84), this is the message with a reference to "having dramas in Sydney". Assuming the foundation for the inferences the Prosecution is seeking to draw is established (that is, evidence that the guns may be returned to Mr Bayliss and the arrest of Mr Liu on 8 February), the evidence is relevant and admissible. 6. As to the text message with "Slug" on 31 January 2017 (Tab 85), the message reads as follows: "[BAYLISS] Im pikn up toy from stash so cnt take her bak in 5mins bro…soz bout this" The Prosecution seeks to submit that the reference to "toy" is a reference to a gun. Mr Norrie submits this is entirely speculative. However, the Prosecutor anticipates there will be evidence from one or more police officers that the word "toy" is sometimes used to refer to firearms. In the absence of such evidence, I do not accept the Prosecutor's submission that the text message would be admissible based on a "sort of ad hoc code [that] can generate so spontaneously". Assuming there is such foundational evidence, and given the timing of the message (the day before the alleged gun supply), the evidence is relevant and admissible. The electronically recorded interview of 24 October 2017 1. On 24 October 2017, Mr Bayliss participated in an electronically recorded interview with police in relation to the alleged supply of firearms on 1 February 2017. Mr Bayliss objects to the tender of the interview in its entirety on the basis that the evidence was obtained unlawfully or as a result of impropriety on the part of the police. In short, he submits that the investigating police persisted in questioning him after he indicated that he did not wish to answer further questions until he had the opportunity to consult with his solicitor. The Prosecutor submits there was no impropriety or unlawfulness in the conduct of the interview, that Mr Bayliss was fully aware of his right to silence, that the police offered to arrange a solicitor for him and that Mr Bayliss voluntarily elected to answer the questions. 2. There are also a number of objections to particular questions and answers in the interview. The Prosecutor accepts that a number of questions and answers must be excised from the interview because the questioning was inappropriate (my expression). At this stage the extent to which the parties can agree on the form the interview would take if it is admitted over Mr Bayliss' fundamental objection is not completely clear. 3. The investigators asked Mr Bayliss more than 1,000 questions over a period of about 3 hours. As the Prosecutor acknowledged, some of the questioning involved the police providing a commentary on the evidence, sharing their case theories and embarking on what might be categorised as cross-examination. While some latitude must be given to allow the investigators to do their job in a case involving allegations of serious criminal activity, the form of questioning is generally inappropriate and unhelpful. As a result, parts of the interview have little or no probative value. 4. The Crown Case Statement (see Exhibit VDA, Volume 1) summarises the pertinent details as follows: "During that interview BAYLISS told police the following: - Shivvy is a nickname that he is known by - He met with a mate known to him as Kory in Burwood on 1 February - That he attended the apartment on that day with a 'chick' - That he does not recall any other persons present in the apartment - That it was the 'chick' who drove the vehicle to the apartment - He signed a photograph identifying the male he knows as Kory (LIU) - He was shown photographs of FAN and LUO but said he did not know them - He identified the vehicle that was driven to the apartment complex - He identified himself in CCTV footage from the lift in the premises - He told police he was holding a jacket in his left hand in the CCTV images - He had phone contact with Kory LIU prior to attending the residence BAYLISS denied the following: - his involvement in the offence of supplying firearms on 1 February 2017 - receiving drugs from LIU, LUO and FAN on 1 February 2017 - knowledge of the drugs located when he was arrested on 2 February 2017" 1. I will make a ruling on the general admissibility issue and make some preliminary and general observations as to the particular objections foreshadowed. Unlawfulness and impropriety 1. It is uncontroversial that Mr Bayliss was aware of his rights including his right not to answer questions. He agreed at the commencement of the interview that he had been advised of his rights by the custody manager and was told on a number of occasions during the interview that he was not obliged to answer questions. I have reviewed the DVD of the interview and there is no issue that he answered the questions voluntarily. There is no suggestion of compulsion or oppressive conduct. The impropriety is said to arise from the following exchange: "Q124 Like I said, you do not have to say or do anything it you don't want to. A Yeah. Q125 Um, anything you say or do will be recorded A Yeah Q126 Um, and do you agree that I offered you the opportunity to make some phone calls to a lawyer or to Legal Aid? A Oh, yeah Q127 Yeah And do you agree in response to that, ah, in regards to speaking to Legal Aid, you said you didn't wish to at this stage? Ah--- A I do want to go back to gaol. Yeah. Q128 Yep. So I can pause this interview if you'd like to speak with them now. Um, but I just, do you agree that I've offered you the opportunity to speak with them and right this second or 10 minutes ago--- A Yeah Q129 ---you didn't want to speak to them? A Yeah, yeah Q130 [11:17] Is that still correct? Would you like to make a phone call now? A No Q131 No A (NO AUDIBLE REPLY) Q132 OK. Right. And so do you agree then prior to me even speaking to you upon your arrival at Wagga Wagga Police Station, you were introduced to the Custody Manager? A Yeah. Q133 Do you recall his name? A No idea. Q134 Matthew Tallent? A Yeah, yeah. Q135 Yeah. A Yeah. Q136 Um, and do you agree that your rights were explained to you by the Custody Manager? A Yeah. Q137 And you were given a copy of them? A (NO AUDIBLE REPLY) Q138 So…. A I signed a copy of them. Yeah, yeah. Q139 Yeah, so you agree you signed that document acknowledging that you understood those rights? A Yeah. Q140 [11:19] Yep. All right. So I'm gunna ask you some questions about the supply of firearms and ammunition in an apartment block on Railway Parade in Burwood on the 1st of February 2017 You do not have to say or do anything if you don't want to. Do you understand? A Yeah. Q141 Anything you say or do will be recorded and can be used in evidence at court. Do you understand? A Yep. Q142 What can you tell me about your visit to Burwood on the 1st of February 2017? A Nothing. Q143 Is that because you don't recall or you don't wish to tell me at this stage? A It was a long time ago, but it like my memory's a bit of a sieve. But, um, I'll wait till I speak to a lawyer before l answer that. Yeah, that kind of stuff. DETECTIVE SENIOR CONSTABLE ROBERTS Q144 Again, Jacob, do you, do you want to speak to a lawyer now? Or are you still sweet? A No, I'll have to do it when I get back to get me, it's on me gaol phone. I don't know the number, Q145 Do you know the, your lawyer's name or--- A Um, n, nuh, no, it's, um, some lawyers in Gosford. I dunno. Q146 Do you want us to make some inquiries to try and find this lawyer? Or are you, we've asked you numerous times now. A Yeah, no, it's all right. Q147 You sure. A I'm, yeah, I'll do it when I get back to gaol. PLAINCLOTHES SENIOR CONSTABLE CHIVERS Q148 OK . So is there anything you wish to tell me about your visit to Burwood on the 1st of February 2017? A Not at this stage, no. DETECTIVE SENIOR CONSTABLE ROBERTS Q149 Did you visit Burwood on the 1st of February 2017? A I don't know the exact dates, but I'm guessing, you know, that, that it's that, ah, yeah, I did probably. I dunno. Q150 [11:22] Do you know who you met up with when you went to Burwood? A Yeah. A mate of mine that, yeah, and in gaol together. Q151 And then what's your mate's name? A Oh, Ko ry." 1. There is some suggestion by the Prosecutor that there is a mis-transcription of the answers at Q127 and Q143. However, having listened carefully and repeatedly to the DVD, I am satisfied the transcript generally reflects what Mr Bayliss said. 2. Counsel for Mr Bayliss relies heavily on my judgment in R v Taleb [2019] NSWSC 241 at [114]-[133]. In that case, I upheld an objection to a recorded interview in circumstances where the accused indicated on a number of occasions that he wished to exercise his right to silence but the police continued to ask questions under the guise that they were required to complete "the process". I held that there was no relevant process and that the questioning was "impermissibly persistent". I set out the relevant legal principles as follows: "124. In The Queen v Ireland Barwick CJ said: In these cases a rule of practice for the conduct of police officers was laid down. I agree with them in so far as they do so. I also agree that the evidence of the questioning in those cases was rightly excluded but for the reason that it was irrelevant. But evidence of relevant statements or admissions obtained by conduct in breach of that rule will not for that reason become irrelevant and inadmissible. The breach of the rule will afford a ground for considering the exercise of a judicial discretion to exclude such evidence. 125. In Plevac v R the Court of Criminal Appeal set out a number of propositions concerning the proper questioning of suspects including: [106] Police should not persist with such an interrogation after the suspect has indicated that he or she does not wish to answer further questions: Ireland (1970) 126 CLR 321 at 331-332; although merely because a suspect says he does not wish to answer, or will not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise admissible. 126. See also the judgment of Adamson J in R v FE. 127. The "rule of practice" referred in Ireland in 1970 remains part of the law in NSW. Legislative enactments have emphasised the right to silence. Section 139 of the Evidence Act provides that a failure to advise an arrested person of their right to silence will result in a finding that the evidence was obtained improperly. While no automatic consequence flows from a failure to issue a caution, or from a failure to respect a suspect's clear statement that they wish to remain silent, there seems little point in requiring police to ensure the person knows their right, if their decision to exercise that right is ignored or side-stepped." (Footnotes and citations omitted.) 1. I went on to say at [130] that, if impropriety is established, the onus shifts to the Prosecution to satisfy the Court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way that it was: s 138(1) of the Evidence Act. I then considered at [131] the matters to be taken into account under s 138(3). 2. It will be seen that the circumstances prevailing in Taleb were very different to those applying here. In the present case, Mr Bayliss was well aware of his rights and at no stage indicated that he wished to exercise his right to silence. By contrast, Mr Taleb asked about his rights more than once and on six occasions (at least) indicated that he wished to exercise his right not to answer questions. The police officer in Taleb was cross-examined and demonstrated little insight into the fact that the process undertaken was improper and contrary to the judicially recognised rule of practice. Here there was no cross-examination of the investigators. 3. I am satisfied that it was improper for the police to continue the questioning about events at Burwood on 1 February 2017 after Mr Bayliss indicated (at A148) he did not wish to answer questions on the subject "at this stage" and (at A143 and elsewhere) that he wished to speak to the lawyer of his choice once he returned to gaol "before I answer that". The question at Q149 ("Did you visit Burwood on 1st February 2017") ignored the exchange at Q148: "Q Is there anything you wish to tell me about your visit to Burwood on the 1st February 2017. A Not at this stage, no." 1. However, I consider the impropriety to be a very minor one. It is clear from his demeanour throughout the interview that Mr Bayliss was able to exercise his rights. He knew he did not have to answer the questions. The police offered to contact a solicitor and to find the solicitor that Mr Bayliss sought to consult. As was held in Plevac v R (1995) 84 A Crim R 570 at 580-581, "merely because a suspect says he does not wish to answer, or will not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise admissible". 2. The relevant factors in s 138(3) of the Evidence Act point clearly towards the admissibility of the evidence: 1. Some of the evidence is quite probative. 2. The evidence is potentially important. 3. The offence is a serious one and is connected to a very grave offence. 4. The impropriety is a minor one. 5. It is not clear, in the absence of any cross-examination, that the impropriety was deliberate or reckless. 1. Accordingly, the objection to the ERISP based on s 138 of the Evidence Act cannot be sustained. Counsel also indicated, in the alternative, that the objection was based on ss 90 and 137 of the Evidence Act. No submissions were directed to the issue of unfairness (s 90) and the objection under s 137 seems more relevant to some of the particular objections raised. I am not persuaded that the ERISP should be excluded under either of those sections. 2. Accordingly, the ERISP is admissible. Particular objections 1. Counsel for Mr Bayliss identified a number of other questions and answers that should be excluded on the ground that the probative value of the evidence is outweighed by the prejudicial effect. This encompassed: 1. Evidence as to the arrests of the accused for unrelated matters including the vehicle stop on 2 February 2017 and search and seizure on 14 February 2017. 2. The accused being in gaol. 3. The accused's criminal record. 4. The accused returning to Sydney on 9 February 2020. 5. The accused's use of alcohol and drugs. 6. The accused's mental illness. 7. The accused's love of and possession of firearms. 1. The Prosecutor indicated in argument he did not press the tender of a deal of the material in the ERISP. It seems the parties have yet to go through the process of working out exactly what is pressed and what is objected to. In some ways, the content of the ERISP will follow other rulings I have made in the course of this judgment and in any subsequent ruling on the proposed tendency evidence (which includes Mr Bayliss' possession of and interest in firearms). I will direct the parties to liaise with each other to determine whether there are any residual issues to be decided. 2. I indicate my preliminary view that I would not permit evidence suggesting that: 1. Mr Bayliss has a criminal record; 2. Mr Bayliss is a drug user or a drug dealer; or that 3. Mr Bayliss has mental health issues. 1. My preliminary view is that evidence that Mr Bayliss returned to Sydney on 9 February is relevant on the assumption that the question of whether he was in contact with any of the co-accused on that date is a fact in issue. 2. The admissibility of questions concerning Mr Bayliss' possession of firearms and love of weapons will turn on the outcome of any argument relating to tendency evidence. Rulings and directions 1. For those reasons, I make the following orders, rulings and directions in Mr Bayliss' trial: 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: 1. 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. 2. The Prosecutor is to file and serve any additional written submissions on the issue by 4:00pm on Monday, 17 August 2020. 1. The resolution of the objections to the disputed text messages is set out in paragraph [55] of this judgment. 2. Subject to outstanding disputes regarding particular questions and answers, the electronically recorded interview dated 24 October 2017 is admissible. 3. 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. ********** Endnotes 1. R v Al Batat & Ors (No 2) [2020] NSWSC 992. 2. This is a pseudonym: R v Al Batat and Ors (No 1) [2020] NSWSC 967. 3. Firearms Act 1996 (NSW), s 4. 4. It has not been suggested, except by me at the tail end of the argument, that the evidence might be categorised as coincidence evidence. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 November 2020