R v Al Batat & Ors (No 5) [2020] NSWSC 1077

Supreme Court New South Wales

Medium Neutral Citation: R v Al Batat & Ors (No 5) [2020] NSWSC 1077 Hearing dates: 5, 6 August 2020 Date of orders: 18 August 2020 Decision date: 18 August 2020 Jurisdiction: Common Law Before: Hamill J Decision: (1) The evidence contained in the hearsay notice (Exhibit VDF) is inadmissible except for that encompassed by the direction in order (2); (2) Pursuant to s 67(4) of the Evidence Act (NSW) 1995, I direct that s 65(2)(a) applies to evidence of the following representations made by Yehia Zakaria: (a) Mr Zakaria sold the vehicle "ages ago". (b) He sold it to an "Asian guy". (c) The Asian guy was described as "White shirt, grey shorts, sneakers, short black hair little bit medium hair still short, might have had glasses on". (3) The direction in (2) is conditional upon the Prosecution providing the accused with evidence relevant to the credibility and character of Yehia Zakaria including: (a) His criminal history. (b) The fact sheets relating to any matters on his criminal record. (c) Any relevant police holdings, including COPS entries and similar documents, relating to allegations of criminal conduct by Mr Zakaria. Catchwords: CRIMINAL LAW - evidence - hearsay evidence - exceptions to hearsay rule - duty to make representations - whether owner under obligation - whether LEPRA creates a duty for the purpose of s 65(2)(a) of the Evidence Act - meaning of owner - nature of duty - relevance of common law authority CRIMINAL LAW - evidence - exceptions to hearsay rule - circumstances giving rise to high degree of probability that representations are reliable - contradictory versions of "the whole truth" - suspicion of malfeasance Legislation Cited: Evidence Act 1995 (NSW), ss 65, 67, 165, 192 Evidence Act 2011 (ACT), s 65 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3, 14, 17 Road Transport Act 2013 (NSW), ss 4, 8, 10, 64 Road Transport (General) Act 1999 (ACT), ss 58, 60 Cases Cited: Conway v The Queen [2000] FCA 461; (2000) 172 ALR 185 Munro v The Queen [2014] ACTCA 11 R v Ambrosoli (2002) NSWLR 603; [2002] NSWCCA 386 R v Keir (No 2) [2016] ACTSC 394 R v O'Meally [1952] VLR 499 Texts Cited: Stephen Odgers, "Uniform Evidence Law" (15th Edition, Lawbook Co, 2020) 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)