Supreme Court New South Wales Medium Neutral Citation: R v Al Batat & Ors (No 7) [2020] NSWSC 1086 Hearing dates: 6 August 2020 Date of orders: 18 August 2020 Decision date: 18 August 2020 Jurisdiction: Common Law Before: Hamill J Decision: The evidence in paragraphs [59] and [61] of the statement of Xiao Lei Yang dated 30 August 2018 is inadmissible. Catchwords: CRIMINAL LAW - evidence - statements made to witness - statements suggest knowledge of relevant events - whether hearsay - whether admissions - whether relevant to prove state of knowledge at earlier time - probative value slight - danger of unfair prejudice Legislation Cited: Evidence Act 1995 (NSW), ss 55, 56, 60, 81, 82, 88, 137 Cases Cited: The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 24 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2018/380808 (Luo) 2017/168582 (Fan) 2017/168476 (Liu) 2017/321618 (Bayliss) 2018/214894 (Li) Publication restriction: Not to be published until the conclusion of the trial Judgment 1. In the course of a pre-trial hearing involving six accused charged with various offences set out in earlier judgments, the accused Ian Fan (also known as "Michael") raised objection to evidence of alleged admissions set out in a statement of Xiao Lei Yang dated 30 August 2018 at paragraphs [59] and [61]: see Exhibit VDA, Volume 1, Tab 18. Mr Fan is charged with one count of murder of Qin Wu, one count of attempted murder of Jun Jia (also known as "Xiao Jun") and one count of supply methylamphetamine (or "Ice") to another co-accused, Jacob Bayliss. These offences are alleged to have occurred on 1 February 2017. 2. The Prosecution case is that Mr Fan was part of a joint criminal enterprise to kill Mr Jia. It is alleged that the enterprise arose out of contract to kill Mr Jia taken out by Jia Chen (also known as "James") after Mr Jia obtained 1kg of methylamphetamine (or "Ice") from him and failed to pay for it. Mr Fan's co-accused, Ying Cheng Luo is alleged to have accepted the contract and recruited others to carry out the deed. Mr Luo and Abdallah Hassan Al Batat, are charged with an earlier attempt on Mr Jia's life on 23 January 2017 (count 1 on the indictment). Mr Fan has not been charged for that same offence. 3. Mr Yang's statement sets out the evidence he may give in the trial. It is a meandering document and I have not been told precisely what parts of the statement the parties agree will be adduced at the trial. It alleges, amongst other things, that Michael was Mr Yang's drug dealer and had been in gaol. The precise timing of the alleged admissions is unclear from the document. Mr Yang spoke of an occasion in the "beginning of 2017" when Michael said he wanted to hide something, which turned out to be guns. From the context and other events, such as an attempt to find a doctor who would treat Mr Luo without making a record, it might be inferred that this happened shortly after the shooting on 1 February 2017. Mr Yang said he returned the guns "1 or 2 weeks" later and went on to speak about contact "about a month after I had dropped the guns off". Mr Yang says he "can't remember the order that the following things happened" but says he continued to obtain Ice from Michael by attending his flat. Michael told him various things on these occasions. Mr Yang says that during this time he went to China for a month. 4. The point of setting out those otherwise irrelevant details is to try to get a sense of the timing of the alleged admissions. It seems clear enough that the conversations occurred at least weeks, and possibly months, after the shooting. 5. In any event, the evidence to which the objection relates is set out in paragraphs [59] and [61] of the statement: "59. One visit Michael told me that Xiao Jun and (sic) cheated James out of 1 kg of "ice", Xiao Jun had taken the ice from James and run away." … 61. On another visit Michael told me James was offering a reward to find Xiao Jun. Michael didn't say much about this." 1. Clearly, the question of whether Mr Jia stole or failed to pay for the Ice is a fact in issue at the trial. Similarly, the question of whether James offered a reward to find Mr Jia, or took a contract out on his life, is a fact in issue in the trial. Further, the state of Mr Fan's knowledge of those two matters at the time of the shooting is a fact in issue. 2. Counsel for Mr Fan filed written submissions (MFI 34). The parties made oral submissions on 6 August 2020. The objection is based on three separate contentions. First, it is submitted that the evidence is not relevant. Second, it is submitted that the evidence is hearsay. Finally, it is submitted that any probative value of the evidence is outweighed by the danger of unfair prejudice. 3. Mr Quilter also referred to paragraph [8] of a further statement made by Mr Yang on 30 June 2020 where he said: "In paragraph 61 [of the statement dated 30 August 2018] I talk about Michael telling me that James was offering a reward to find Xiao Jun. I can't remember the words Michael used but I remember from what he told me I understood that Xiao Jun had got 1 kilogram of ice that belonged to James and James had said whoever could get Xiao Jun he would reward that person. I do not know what the reward was but if I had to guess I think it would be money." 1. Mr Quilter submitted that, insofar as the evidence is hearsay, the evidence cannot be used to prove the fact that Mr Jun stole the drugs or that "Xiao Jun did in fact cheat James out of a quantity of ice." [1] Similarly, the admissions cannot be used to prove that "James did in fact offer a reward to find Xiao Jun." [2] Rather, the evidence could only establish Mr Fan's state of knowledge in relation to those two matters. As to Mr Fan's state of knowledge, Mr Quilter submitted that the evidence can only prove his knowledge at the time of the conversation, a matter than cannot rationally affect an assessment of a fact in issue and, in particular, his state of knowledge at the relevant time (that is, when the shooting occurred). I accept Mr Quilter's submissions that, if admitted, the evidence could only be led to prove Mr Fan's knowledge at the time of making the representation. 2. Assuming the evidence is considered to be relevant, Mr Quilter submitted the probative value was outweighed by the danger of unfair prejudice. It was submitted the danger was that the jury may impermissibly use the evidence to prove the relevant facts in issue and that the jury may give the evidence more weight than it truly deserves in relation to Mr Fan's knowledge at the relevant time (weeks or months earlier). Reliance was placed on The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 24 at [48]." 3. The Prosecutor submitted the evidence is first-hand hearsay and admissible under s 81(1) of the Evidence Act. This submission was based on the fact that the statement was contrary to Mr Fan's interests at trial and constitutes an admission. The Prosecutor submitted that any unfair prejudice to the accused could be cured by a direction to the jury: "…to the effect that even though you have heard evidence that Mr Fan said these things to Xiao [Lei] Yang… [that evidence] is only capable of proving his knowledge at that later point in time." [3] 1. Section 55 of the Evidence Act provides 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". 2. An "admission" is defined in the dictionary of the Evidence Act in the following terms: "Admission" means a previous representation that is: (a) made by a person who is or becomes a party to the proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding. 1. The hearsay rule does not apply to first-hand evidence of an admission and the context in which it was made: ss 81 and 82 of the Evidence Act. 2. Section 88 of the Evidence Act provides: For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission. 1. The exception to the hearsay rule in s 60(3) of the Evidence Act does not apply in criminal proceedings to evidence of an admission. A note to that sub-section states: "The admission might still be admissible under section 81 as an exception to the hearsay rule if it is "first-hand" hearsay: see section 82." 1. I am prepared to accept that the evidence is relevant and that it falls within an exception to the hearsay rule because it is an admission against Mr Fan's interest. However, the probative value of the evidence – that is the extent to which it might rationally affect a fact in issue – is far from substantial. I am satisfied that the probative value of the evidence is outweighed by the dangers identified in Mr Quilter's submissions. The evidence could easily be misused by the jury. 2. Section 137 of the Evidence Act provides: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 1. Having reached the conclusion stated in [17], s 137 mandates the exclusion of the evidence. Orders 1. For those reasons, I rule that the evidence in paragraphs [59] and [61] of the statement of Xiao Lei Yang dated 30 August 2018 is inadmissible. ********** Endnotes 1. Transcript ("T") 06/08/2020, p 369. 2. T 06/08/2020, p 369. 3. T 06/08/20, p 370(10)-(14). 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