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) 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. Abdallah Hassan Al Batat is charged with four offences arising out of a series of shootings in January and February 2017. It is alleged that Mr Al Batat was part of a joint criminal enterprise to murder Jun Jia. Mr Jia was said to owe money for drugs purchased from some gangsters called Jia Chen (James) and Kwok Chun Chau (Jackie or CC). As a result, the gangsters took out a contract on Mr Jia's life. One of Mr Al Batat's co-accused (Ying Cheng Luo) allegedly accepted the contract and recruited Mr Al Batat and others to carry out the execution. Mr Jia was shot at on two separate occasions and on the second of those occasions Qin Wu was shot and killed. As a result, Mr Al Batat stands charged with one count of shooting at Mr Jia with intent to murder on 23 January 2017 (count 1 on the current indictment), one count of murder of Mr Wu on 1 February 2017 (count 6), a further count of attempted murder of Mr Jia on 1 February 2017 (count 7) and one count of hindering the investigation into the murder (count 8). [1] 2. During the course of the pre-trial hearing, Mr Al Batat raised objection to parts of the evidence that the Prosecutor seeks to tender against him. This judgment resolves an objection to some hearsay evidence the subject of a revised hearsay notice served on 3 August 2020 (Exhibit VDF). 3. The evidence subject of the hearsay notice relates to representations made by a Mr Yehia Zakaria on 4 October 2018. These representations were made following a formal demand by investigating police pursuant to s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"). The representations related to police inquiries as to the identity of the driver of a car (a 2001 silver Toyota Avalon registered ALL86U) on 23 January 2017. Mr Zakaria was the last known registered owner of that car. He told the police that he had sold the car long ago and that he sold it to an Asian man in Burwood. He said a number of other things as well. It is the Prosecution case that the car was subsequently set on fire in an attempt to destroy the evidence. 4. The hearsay notice indicated that the Prosecution relied on s 65(2)(a), (c) and (d) of the Evidence Act 1995 (NSW). In the course of argument, the Prosecutor abandoned reliance on sub-paragraph (d) of s 65(2) on the basis that there was "no suggestion what Mr Zakaria says is against his interests". [2] Accordingly, the objection turns on the application of ss 65(2)(a) and (c) of the Evidence Act to the facts and circumstances of the case. 5. The evidence to which objection is taken is contained in material tendered on the voir dire in Exhibit VDF, namely: 1. A statement of Plain Clothes Senior Constable (PCSC) Niall Chivers dated 4 October 2018 which describes the conversation between the officer and Mr Zakaria; and 2. The attached "Form of Demand" which appears to be a modified form in which answers containing some of the representations said to have been made by Mr Zakaria are recorded in handwriting and signed by Mr Zakaria on 4 October 2018. 1. Also relevant to the objection is the statement of a witness now known (in this trial at least) as Leonard Rivers: Exhibit VDA, Volume 1, Tab 6 especially at paragraphs [71]-[72] and [84]-[87]. Mr Rivers is in an important witness in the case. Amongst many other things, Mr Rivers is expected to give evidence of the acquisition of a car that was used in the attempted murder on 23 January 2017. If he gives evidence consistent with his statement dated 25 January 2018, Mr Rivers will say that the car was obtained from some local drug users in exchange for an "8 ball" of Ice and that the transaction took place next to a park opposite Westfield at Burwood. 2. There is no dispute that Mr Zakaria is unavailable to give evidence as he is dead: s 65(1) of the Evidence Act. A letter from the State Coroner's Court dated 26 May 2020 confirms his death. 3. The Prosecution case is that the vehicle owned by Mr Zakaria was set on fire late on 23 January 2017 in Wareemba in Sydney's inner west. A neighbour took a video of the car while it was on fire and police officers who attended the scene recorded the registration number. The Prosecution alleges that Mr Al Batat used this vehicle earlier that evening in the attempt to shoot Mr Jia in the vicinity of Bexley North. The Prosecution relies on the hearsay evidence to establish that Mr Zakaria sold the car to an "Asian guy" at Burwood and the deal was arranged by his friend, Neamh English. This evidence can potentially provide support for the evidence of Leonard Rivers that the accused, Mr Luo, bought a car and that the purchase was arranged by Mr Al Batat, and various details of the acquisition of the vehicle. 4. Mr Al Batat objects to the evidence on two bases. First, he says that reasonable notice was not given by the Prosecution pursuant to s 67 of the Evidence Act. Second, he submits that the evidence does not fall within any of the relevant exceptions to the hearsay rule relied on by the Prosecution in its revised hearsay notice. 5. Counsel for Mr Luo supported the objection made by Mr Al Batat. [3] The requirement for reasonable notice 1. Section 67 of the Evidence Act provides (relevantly): (1) Sections 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. … (3) The notice must state - (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and … (4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice. 1. Mr Al Batat submits that reasonable notice was not given because the hearsay notice was not served until 31 July 2020 and the amended notice was only served via email on 3 August 2020 (Exhibit VDK). 2. The Prosecutor relies on a letter sent by the Director of Public Prosecutions to Mr Al Batat's solicitor on 2 April 2020 (Exhibit VDG). This correspondence indicated the Prosecutor's intention to rely on the hearsay evidence of PCSC Chivers. Under the heading "Vehicle ALL 86U – Yehia Zakaria" the letter said: "The Crown understands that Mr. Zakaria is deceased. The Crown will rely on the hearsay evidence of Officer Chivers on the basis that Mr. Zakaria is unavailable. We are waiting on a death certificate." 1. The Prosecutor submitted that this put the accused on notice that the hearsay evidence was relied on and that, apart from the requirement in s 67 that the notice specify the particular provisions on which the party seeking to tender the evidence relies, the letter otherwise fulfilled the notice requirement. 2. At the time of this letter, evidence about the car fire had not been served. Between 2 April and 31 July 2020, the Prosecution did not again foreshadow the use of Mr Zakaria's representations, and did not respond to a notice of objection which said that objection was taken to the admission of any of Mr Chivers' evidence, comprised of out of court conversations with any witness or non-witness. In an outline of objections dated 10 July 2020 (MFI 28), Mr Al Batat's lawyers indicated: "Objection is taken to all representations contained in statements of police officers (principally officer Chivers), made by others… These police officer(s)' statements contain numerous representations made by witnesses and non-witnesses which are not admissible. This includes but is not limited to those in the 'corroboration' statement(s). This does not preclude some of these representations being adduced on behalf of the accused if they are relevant for a non-hearsay or admissible hearsay purpose." 1. This objection was restated in a further outline of objections sent on 20 July 2020 (MFI 30) in response to the provision of an updated witness list and updated list of statements, which included the statement of Mr Chivers and the relevant Form of Demand. 2. While it was conceded that the evidence was relevant, Mr Al Batat argued that if adequate notice was provided, further inquiries would have been made into Mr Zakaria's background, alleged drug addictions, and criminal associations. 3. While the letter of 2 April 2020 did not comply with the notice requirements provided for in s 67, it did provide a clear indication that the prosecution intended to rely on the hearsay statements of Mr Zakaria through the evidence of Mr Chivers. Accordingly, a form of notice was provided to the accused in April 2020, some three to four months prior to the commencement of the trial. The ongoing correspondence and failure to respond to the notices of objection muddied the water but at no stage did the Prosecution abandon its stated intention to press the hearsay evidence. The Prosecutor acknowledged that the failure to serve a formal hearsay notice was an oversight. Once the oversight was realised, formal notice was served as soon as practicable. 4. I accept that the accused may have undertaken further investigations into the credibility of Mr Zakaria (his criminal associations, drug use and so on) had he been given clearer and proper notice. However, there is material already available to impugn Mr Zakaria's reliability. It is clear (on the prosecution case) that he was a drug user desperate enough to trade his car for methylamphetamine. If the evidence is otherwise admissible I would make any direction under s 67(4) conditional on the prosecution providing the accused with Mr Zakaria's criminal record and any police holdings relevant to his credibility. Because of the expected length of the trial, there is time for the accused to obtain information that may be used to impugn Mr Zakaria's credibility posthumously. 5. The relevant factors in s 192 of the Evidence Act tend to favour the giving of a direction under s 67(4). In particular: 1. There will be no significant increase in the length of the trial; 2. Any unfairness to Mr Al Batat is able to be ameliorated and managed; 3. The evidence is potentially important; 4. The proceedings involve allegations of very serious criminal offending; and 5. A direction can be made requiring the Prosecution to assist the accused in obtaining evidence relevant to Mr Zakaria's credibility. Exceptions to the hearsay rule relied upon by the prosecution 1. Having abandoned its reliance on sub-paragraph (d), the Prosecution relies on s 65(2)(a) and (c) which provide: (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation-- (a) was made under a duty to make that representation or to make representations of that kind; or … (c) was made in circumstances that make it highly probable that the representation is reliable. 1. To determine whether the representations made by Mr Zakaria, or any of those representations, are caught by either of these exceptions to the hearsay rule it is necessary to consider closely the content of the representations, the circumstances in which they were made and a number of statutory provisions. The circumstances in which the representations were made 1. During their investigation, police obtained information that a 2001 silver Toyota Avalon registered ALL86U was used in the course of the attempted murder of Jun Jia on 23 January 2017. They ascertained that the registered owner of the vehicle at that time was Yehia Zakaria and approached him to make a formal demand under s 14 of LEPRA, requiring him to disclose the identities of the occupants of the vehicle at the relevant time. 2. Mr Chivers' statement (see Exhibit VDF) sets out the circumstances of the conversation and annexes a document, signed by Mr Zakaria. The conversation occurred on 4 October 2018, that is, about 1 year and 9 months after the attempted murder. 3. Police approached Mr Zakaria at his home. The initial conversation is recorded in paragraph [5] of the statement: "5. We sat down on some chairs that were on the front veranda of the property. I Said – How you feeling? He Said – I'm ok I Said – You just got out of hospital, didn't you? Are you feeling ok? He Said – Yea I'm good I Said – I need to talk to you about a car you owned He Said – Ok what happened. Actually don't tell me I don't want to know I Said – I can tell you after but ideally now I just want to know what you can remember and what you know. He Said – That's fine I don't need to know I Said – Ideally today I want to do two things. The first thing is a form of demand and the second is if you are willing take a statement from you. Do you know what a form of demand is? He Said – No I Said – Legislation requires that you tell me certain things as you were the registered owner of the vehicle. He Said – Ok I Said – Before we start can you tell me about your car, it would have been last year. He Said – I sold it ages ago I Said – Who did you sell it to? He Said – An Asian guy I Said – Do you know his name? He Said – No, my friend Neamh organised it I Said – Who is Neamh He Said – Just a friend I Said – Is she your girlfriend He Said – Nah, I wish I Said – Where did you sell the car? He Said – In Burwood I Said – Ok, before we start is your number still [redacted]? He Said – Yea I Said – Do you have your phone? I just want to check some numbers see if you know them?" 1. Investigating police proceeded to interrogate Mr Zakaria's mobile telephone. This is set out in paragraphs [6] to [8] of the statement: "6. Yehia went inside and came back out shortly with a mobile phone I Said – Can you type in [redacted]? 7. I saw Yehia type in this number, I observed this number was not saved as a contact in his phone I Said – Have you had this phone for a long time? He Said – Nah I Said – Can you type in another number please, [redacted]? He Said – That sounds familiar 8. I saw Yehia type this number in his phone and again it was not saved as a contact I Said – I have written down here what I need to talk to you about it might sound a bit formal but I need to do it properly ok? He Said – Ok I Said – Before we do this have you got any ID, drivers licence, pension card or something like that? He Said – Yea its inside" 1. On no view was this part of any formal demand process permitted under LEPRA. Mr Zakaria was not informed of any rights he may have had to refuse police access to his telephone or to decline to comply with their requests. 2. By that stage the investigators had obtained the information that Mr Zakaria may have been required to provide under the legislation. However, they then went through a formal demand process and recorded the exchange in hand writing on a pre-prepared form. The questions went beyond what was required by the provisions of LEPRA. This is recorded in paragraphs [9] to [11]: "9. Yehia went inside and returned with a pension card in his name. I took out a typed document that I had prepared earlier, I again held open my Police identification I Said – Before we start this bit, I don't want to be rude but you understand and can read English sweet? He Said – Yea I Said – I am Plain Clothes Senior Constable Niall Chivers from Strike Force Buttle part of the Homicide Squad. I propose to exercise a power pursuant to section 14 of the Law Enforcement (Powers and Responsibilities) Act 2002. This power allows me to obtain the details of the drivers and passengers of a motor vehicle in certain circumstances. D[o] you understand? He Said – Yea I Said – I have to warn you that failure or refusal to comply with my request in the exercise of this power may be an offence. Do you understand? He Said – Yea I Said – I have reasonable ground to suspect that motor vehicle bearing New South Wales registration ALL86U, being a 2001 Silver Toyota Avalon may have been used in connection with the carrying out of a serious indictable offence, that being the attempted murder of Jun Jia on 23rd January 2017 between 6 and 7pm at Bexley Road cross Homer Street, Kingsgrove. Do you understand that? He Said – Yes I Said – As the registered owner of this vehicle, I require you to disclose to me the identity of the driver or passengers of or in the vehicle at or about 6 to 7pm on 23rd January 2017, being the time the offence was or may have been committed. Who was the driver or passengers of motor vehicle ALL86U at or about the time of the alleged offence? He Said – I have no idea, I wasn't there, I sold it ages ago. I don't know what you want. I Said – No drams(sic), I have written what you said here, can I just get you to sign and date underneath please. 10. I handed the document to Yehia and saw him look at it before signing and dating where I had indicated. I also signed and dated this document I Said – I am going to ask you some further questions, you don't have to say or do anything if you don't want to, do you understand? He Said – Yea ok I Said – Anything you say or do will be recorded and that recording can be used in court. Do you understand? He Said – Yea I Said – Who did you sell it to? He Said – I sold it to an Asian guy, this guy that Neamh got to me, I went to Burwood to sell it, he gave me one and a half grand. That's all I know about it. I Said – Can you describe the Asian male? He Said – White shirt, grey shorts, sneakers, short black hair little bit medium hair still short, might have had glasses on. He was kind of intimidating and scary I Said – What is Neamh's last name? He Said – English. I Said – Ok thanks, I have just written down those answers here as well. Can I get you to sign and date again please? 11. I handed the document to Yehia and again saw him look at it and sign and date where I had indicated. I also signed and dated the document. ANNEXURE – I now produce form of demand signed by myself and Yehia Zakaria I Said – What can you tell me about Abdallah? He Said – Who? I Said – Abs? He Said – Huh? I Said – Abdullah Al-Batat? He Said – Who's that? I Said – You were calling him a lot when you were selling your car He Said – Neamh organised it all I Said – Abs lives just near here and you saying you don't know him? He Said – No I Said – Did you really get cash for the car? He Said – What do you mean? I Said – Did you get one and a half grand cash or one and a half grand worth of drugs He Said – Drugs DSC Roberts Said: What type of drugs He Said – Ice DSC Roberts Said: ok, just let me make sure I got this right. You are friends with Neamh you wanted to sell your car for cash or to get some drugs and Neamh organised that, and you went with her to Burwood and met an Asian male who you don't know and he gave you some drugs for your car and that's all you know? He Said – yea DSC Roberts Said: so, you are putting it all on Neamh He Said – what do you mean DSC Roberts Said: you are saying you don't know any of these people and Neamh arranged it He Said – yea I Said – Ok, do you drive or do you know someone that can drive you? He Said – How come? I Said – To get a statement we can go to Granville Police Station and use a computer? He Said – My mum can take me I Said – Ok can we go now or should we meet later He Said – I'm not sure I Said – Well we can drive you, but can someone pick you up, will probably take 30 minutes to an hour He Said – Why do I have to do a statement I have already told you everything I know I Said – You don't have to, but I want to get more information about how you know Neamh, where you meet in Burwood more information about this Asian male and any more information about selling your car that you can remember He Said – But I have already told you what I know I Said – Yeah, but I would like to try get more information and I would like to do that in a statement format. DSC Roberts Said: what is your memory like normally? He Said – What do you mean? DSC Roberts Said: is your memory normally good, like can you remember well? He Said – Nah not really DSC Roberts Said: why's that? He Said – Just the life I have lived I Said – Ok, will you help us and do a statement? He Said – Nah I don't want to, I'm done. I Said – Are you sure? He Said – I have already told you everything" 1. Mr Chivers recorded Mr Zakaria's demeanour throughout their conversation in paragraph [13]: "13. While dealing with Yehia he was fidgety, his hands were always moving, either rubbing his face, rubbing his thighs and taking them in and out of his pockets, also he was tapping his legs up and down. When speaking Yehia spoke quickly and softly." 1. Mr Rivers provided a version of events concerning the acquisition of the car in his statement dated 25 January 2018. As Senior Counsel for Mr Al Batat pointed out, the use that can be made of Mr River's evidence is limited. As I explain below, it is not part of the circumstances in which the representation was made and cannot be used to inform the determination under s 65. For present purposes, Mr Rivers described the people from whom the car was purchased as "Ice" users and said that one of his confederates described them as "just junkies". Section 65(2)(a): Was the representation made under a duty to make that representation or to make representations of that kind? 1. Section 14 of LEPRA is (relevantly) in the following terms: Power of police officer to require disclosure of driver or passenger identity (1) A police officer who suspects on reasonable grounds that a vehicle is being, or was, or may have been used in or in connection with an indictable offence may do any one or more of the following-- … (c) require any owner of the vehicle (who was or was not the driver or a passenger) to disclose the identity of the driver of, and any passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the requirement was made or a direction was given to stop the vehicle'" 1. Section 17 provides: Failure of owner to disclose identity (1) An owner of a vehicle who is required in accordance with section 14 by a police officer to disclose the identity of the driver of, or a passenger in or on, the vehicle must (unless the owner has a reasonable excuse for not doing so)-- (a) disclose the identity of any person the owner knows or has reason to suspect was the driver or a passenger, or (b) if the owner does not know the full and correct identity of the person--disclose such information about the person's identity (such as any alias used by the person or the general location of his or her residential address) as is known to the owner. Maximum penalty--50 penalty units or 12 months imprisonment, or both. (2) Subsection (1) extends to an owner of a vehicle who was the driver of, or a passenger in or on, the vehicle. (3) Without limitation, for the purposes of this section, an owner has reason to suspect a person was the driver of, or a passenger in or on, a vehicle if the owner has reason to suspect that a person had access to the vehicle. 1. The first question to be asked when determining whether Mr Zakaria's evidence falls within the exception in s 65(2)(a) is whether a person complying with a form of demand under s 14 of LEPRA is under a duty to make a representation or representations of the kind contemplated by the relevant paragraph of the Evidence Act. The second question, if the relevant duty exists, is whether the duty to make representations extends to representations made in response to questions asked of Mr Zakaria that he was not under a legal obligation to answer. 2. Mr Al-Batat submits that Mr Zakaria was not under any duty of the kind contemplated by s 65(2)(a). However, if there is such a duty, "it is a duty on an owner to provide the identification of the driver or passenger" of the vehicle used in connection with the indictable offence. Any such duty does not extend to answering questions outside the scope of s 14 of LEPRA. Was Mr Zakaria the owner of the vehicle at the relevant time? 1. Mr Al Batat submitted initially that Mr Zakaria was not the "owner" of the vehicle for the purposes of s 14 of LEPRA. [4] This was based on the definition of "owner" in s 3 of LEPRA: "owner" of a vehicle means the responsible person for a vehicle within the meaning of the Road Transport Act 2013, and includes-- (a) a person who is not such an owner but who usually has the care, control and custody of the vehicle, and (b) any other person prescribed by the regulations for the purposes of this definition. 1. Section 4 of the Road Transport Act 2013 (NSW) provides: "owner"— (a) in relation to a vehicle (including a vehicle in a combination)—means a person who— (i) is the sole owner, a joint owner or a part owner of the vehicle, or (ii) has possession or use of the vehicle under a credit, hire-purchase, lease or other agreement, except an agreement requiring the vehicle to be registered in the name of someone else, or 1. Section 10 of the Road Transport Act provides a definition of "responsible person": (1) In the road transport legislation, the responsible person for a vehicle means— (a) in relation to a vehicle that is registered in Australia—each of the following persons— (i) an Australian registered operator of the vehicle, except where the vehicle has been disposed of by the operator, (ii) if the vehicle has been disposed of by a previous Australian registered operator—a person who has acquired the vehicle from the operator, (iii) a person who has a legal right to possession of the vehicle (including any person who has the use of the vehicle under a lease or hire-purchase agreement, but not the lessor while the vehicle is being leased under any such agreement), and … (c) in relation to a vehicle that is not registered in Australia and to which no trader's plate is affixed—each of the following persons— (i) a person who was last recorded in an Australian registrable vehicles register as being responsible for the vehicle, (ii) a person who has a legal right to possession of the vehicle (including any person who has the use of the vehicle under a lease or hire-purchase agreement, but not the lessor while the vehicle is being leased under any such agreement), and … 1. Section 8 of the Road Transport Act also provides the "meaning of terms relating to registered operators": (1) Except as provided by subsections (2) and (3), in this Act a registered operator in relation to a vehicle means a person recorded in the NSW registrable vehicles register as the person responsible for the vehicle. (2) In this Act, an Australian registered operator— (a) in relation to a vehicle (including a vehicle in a combination)— means a person recorded in an Australian registrable vehicles register as the person responsible for the vehicle, or (b) in relation to a combination—means a person recorded in an Australian registrable vehicles register as the person responsible for the towing vehicle in the combination. 1. Section 64 of Road Transport Act provides: (1) Register to be maintained in accordance with statutory rules Subject to this section, the Authority is to maintain a register of registrable vehicles (the NSW registrable vehicles register) in accordance with the statutory rules. (2) Register does not provide evidence of title The NSW registrable vehicles register does not provide evidence of title to any registrable vehicle. 1. Mr Al Batat's initial position was based on the evidence before the Court at that time and drew its force from the definition in s 10(1)(a) of the Road Transport Act and the fact that Mr Zakaria had disposed of the vehicle by 23 January 2017. However, the following day the Prosecutor tendered additional material including the registration records for the vehicle. [5] He also provided further written and oral submissions. [6] The additional evidence brought into play the provision in s 10(1)(c) and, it having been clarified that the vehicle was no longer registered, Ms Rigg SC conceded that "it would seem to make Mr Zakaria an owner in the relevant sense." [7] 2. I accept the position finally agreed upon by the parties, that Mr Zakaria was the owner of the car for the purpose of ss 14 and 17 of LEPRA at the time of his conversation with Mr Chivers. Do the LEPRA provisions create a duty for the purpose of s 65(2)(a) Evidence Act? 1. Mr Al Batat submitted that, even though the LEPRA provisions entitled the police to make the formal demand of Mr Zakaria, and obliged him to provide the information required by the section, this did not constitute a "duty" under s 65(2)(a). Reliance was placed on the case of R v O'Meally [1952] VLR 499. That case was decided under the common law exception described by Stephen Odgers as relating to "statements by a person now deceased made in the course of a legal duty to observe and record." [8] O'Meally concerned a deceased police officer who gave a description of the person who shot him. In the course of a criminal trial, Coppel AJ decided that the description did not fall within a recognised common law exception to the hearsay rule. His Honour held: "…the duty in question must not be the general duty to advance the interests of an employer or a superior, but a specific and twofold duty – a duty to do a particular act and to record, or maybe report, it when done. That duty must be, in my opinion, a regular duty to report matters of the kind in fact reported to an employer or superior officer." 1. The decision of a single Judge in Victoria decided before the introduction of the Evidence Act is not a particularly persuasive authority although I am grateful to Senior Counsel for drawing it my attention. Odgers says that the common law exception required there to be "no motive for the deceased to state other than the truth" and notes the difference between the common law requirement that the maker of the hearsay statement be deceased, and the provision in s 65 which requires only that the maker be unavailable (as that expression is defined in the Evidence Act). The author also says that under s 65 "the duty need not be a legal duty". 2. In R v Keir (No 2) [2016] ACTSC 394, Refshauge J considered the scope of the "duty provision" in s 65(2)(1) the Evidence Act 2011 (ACT). His Honour said: "24. The form of the duty provision does not limit such representations to written statements (see R v O'Meally [1952] VLR 499 at 500), nor is it clear that the duty must be one to record or report the declarant's acts. The term "duty" is unconfined in the duty provision. 25. While the common law is retained, except as otherwise expressly or by necessarily intendment excluded (s 9 of the Evidence Act), it does not seem to me that the duty provision should be limited by what was required at the common law so far as the duty is concerned. The extension of the provision and the terms of the duty provision do not suggest that this should be so." 1. I agree with those observations. His Honour went on to posit: "26. For example, it seems to me that the duty of a person to provide information to police under provisions such as ss 58 and 60 of the Road Transport (General) Act 1999 (ACT) would be a duty that would permit the answer to such police questions to be admissible under the duty provision." 1. This was a purely obiter observation but the provisions to which his Honour referred are in fairly similar terms to the provisions in ss 14 and 17 of LEPRA. [9] 2. I accept, for the purpose of the hearsay exception in s 65(2)(a), that ss 14 and 17 of LEPRA impose a relevant "duty" on the owner of a motor vehicle to provide the information referred to in those provisions. However, the duty does not extend beyond representations required by those sections, that is: * The identity of the driver and passengers at the relevant time; and * Such information about those persons' identities as is known by the owner. 1. Mr Zakaria provided more information than he was required to pursuant to the obligations created by ss 14 and 17 of LEPRA. Those additional representations do not fall within the exception created by s 65(2)(a). Ruling pursuant to s 65(2)(a) 1. Pursuant to s 65(2)(a), I will allow evidence of the following representations: 1. Mr Zakaria sold the vehicle "ages ago". 2. He sold it to an "Asian guy". 3. 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." 1. I will not allow, under this exception, the remaining representations made by Mr Zakaria. In particular, unless otherwise admissible, I will not allow the observation that the purchaser was "kind of intimidating and scary", that Mr Zakaria travelled to Burwood to sell the car, that the sale price was "one and half grand" and that he accepted drugs in lieu of cash in payment for the car. If the signed form of demand is edited according to those rulings, I will allow the document to be tendered. Section 65(2)(c): Were the representations made in circumstances that make it highly probable that the representations are reliable? 1. Section 65(2)(c) requires the Court to focus on the circumstances in which the hearsay representations were made. It was held in R v Ambrosoli (2002) NSWLR 603; [2002] NSWCCA 386 that the correct approach to this provision is to focus on "the circumstances of the making of the representation to determine whether it is … highly probable that the representation was reliable" and to exclude from consideration "evidence tending only to prove the asserted fact". [10] The significance of this is that the statement made by Mr Rivers must, for this purpose, be disregarded. The fact that details provided by Mr Rivers, such as the transaction taking place in Burwood and the fact that the vendors accepted drugs for payment, are not to be taken into account. 2. The Prosecutor submitted that the fact that Mr Zakaria was under a legal duty and was told part way through the conversation that the recording could be used in court suggested the circumstances were such that it was highly probable that the representations were reliable. I am unable to accept this submission. It is contrary to the experience of the courts which are constantly confronted with contradictory versions of "the whole truth", each of which is given on oath. It is also inconsistent with the decision in Munro v The Queen [2014] ACTCA 11. In Munro, Refshauge ACJ and Penfold J concluded that the test would not be satisfied "simply because [the representation] was made to a police officer or because it was made in the context of an understanding that a false statement would expose the maker to prosecution": at [14]. Their Honours noted at [11] that acknowledging a legal obligation to tell the truth "does not necessarily make a person's representation reliable". 3. Mr Zakaria was told that he was under an obligation to provide the information. His initial response was unusual: "Actually don't tell me [what happened] I don't want to know." The police conduct in interrogating the telephone numbers stored in his phone and in providing him with part of the traditional "caution" may have suggested to him that he was under suspicion of involvement in wrongdoing of some kind. His connection with the alleged perpetrators – they were his drug dealers according to Mr Rivers – and the temporal proximity to the events under investigation may give rise to a suspicion that he was involved in, or aware of, the events surrounding the shooting or the destruction of the car. None of these matters suggest that the circumstances were such that it was "highly probable" that his statements and representations were reliable. 4. There was also his demeanour as recorded by Mr Chivers. Mr Zakaria was "fidgety, his hands were always moving, either rubbing his face, rubbing his hands or taking them in and out of his pockets", he was "tapping his legs up and down" and he "spoke quickly and softly". This conduct is suggestive of nervousness or drug use. 5. Senior Counsel for Mr Al Batat submitted that Mr Zakaria "has every reason to give a false account of having disposed of the vehicle before such point in time [as it was used in the shooting and burned] and/or obfuscating who he had provided it to if he disposed of it" because he is a man whose car was used in criminal activity. In such circumstances, it would be difficult to reason that representations made would be reliable. There is a degree of speculation in the suggestion that Mr Zakaria was involved in the malfeasance which brings the six accused men to the Supreme Court. I have considered the submission but given it limited weight. 6. I have considered the Prosecutor's submission that the interaction between the police and Mr Zakaria can be broken into three stages. The first stage being before the form of demand was administered (paragraphs [5] - [8] of Mr Chivers' statement), the second stage being after the form of demand was administered but before the formal caution (paragraph [9]) and the third stage after Mr Zakaria was formally cautioned (paragraph [10]ff). While it is true that there were three distinct stages to the interaction, I do not accept that any of those stages amounted to circumstances that made it "highly probable" that the representations were reliable. 7. In Conway v The Queen [2000] FCA 461; 172 ALR 185 it was held at [146] that the requirement "that it be 'highly probable' that a representation be 'reliable' in order to be admissible is an onerous one". 8. The prosecution has not satisfied that requirement. 9. Apart from the evidence referred to above at [49], which itself may attract a warning under s 165(1)(a) of the Evidence Act, the evidence is not admissible. Rulings and directions 1. For those reasons, I make the following rulings and directions: 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: 1. Mr Zakaria sold the vehicle "ages ago". 2. He sold it to an "Asian guy". 3. 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." 1. The direction in (2) is conditional upon the Prosecution providing the accused with evidence relevant to the credibility and character of Yehia Zakaria including: 1. His criminal history. 2. The fact sheets relating to any matters on his criminal record. 3. Any relevant police holdings, including COPS entries and similar documents, relating to allegations of criminal conduct by Mr Zakaria. ********** Endnotes 1. An order was made to sever count 2 and the count numbers will change when the new indictment is filed. Since commencing to write this judgment, the Prosecutor has also advised that the hinder investigation charge is to be discontinued. 2. Transcript (T) 05/08/20, p 309. 3. T 06/08/20, p 351. Initially, no objection was taken by Mr Luo until his position was canvassed in argument: T 05/08/20, p 337. 4. T 05/08/20, pp 323-324; written submissions (MFI 27), paragraphs 9-14. 5. T 06/08/20, p. 348, Ex VDL and Ex VDM. 6. MFI 32. 7. T 06/08/20, p 350. 8. Stephen Odgers, "Uniform Evidence Law" (15th Edition, Lawbook Co, 2020), p 435. 9. Section 60 of the Road Transport (General) Act 1999 (ACT) provides: (1) If the driver of a motor vehicle is alleged to have committed an offence against the road transport legislation— (a) the responsible person for the vehicle, or the person in possession of the vehicle, must, when required to do so by a police officer or authorised person, give information (which must, if so required, be given in the form of a written statement signed by the person) about the name and home address of the driver at the time of the offence; and (b) anyone else must, when required to do so by a police officer or authorised person, give any information that the person can give that may lead to the identification of the driver. 10. R v Ambrosoli (2002) NSWLR 603; [2002] NSWCCA 386 at 616 [34]-[35] (Mason P, RS Hulme J and Simpson J agreeing). Amendments 20 August 2020 - Fixed typographical error in [1]. 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