Supreme Court New South Wales Medium Neutral Citation: R v Al Batat & Ors (No 15) [2020] NSWSC 1227 Hearing dates: 9 September 2020 Date of orders: 10 September 2020 Decision date: 10 September 2020 Jurisdiction: Common Law Before: Hamill J Decision: The application under s 32 of the Evidence Act 1995 (NSW) is refused. Catchwords: EVIDENCE - evidence of admission in WeChat exchange - evidence admissible against one of six accused - application to refresh memory from statement - where statement made 27 months after "chat" - impressionistic recall of conversation - relevant considerations - leave to put document in hands of witness refused EVIDENCE - words and phrases - "fresh in the memory" - statutory construction - whether phrase should be construed wherever it appears in statute - where one section amended to define phrase - where section under consideration not amended Legislation Cited: Evidence Act 1995 (NSW), ss 32, 66 Cases Cited: Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 R v Al Batat & Ors (No 8) [2020] NSWSC 1095 R v Al Batat & Ors (No 10) [2020] NSWSC 1107 R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105 Roth v The Queen [2014] VSCA 242 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): 2018/214586 (Al Batat) 2017/170943 (Luo) 2017/168582 (Fan) 2017/168476 (Liu) 2017/321618 (Bayliss) 2018/214894 (Li) Publication restriction: No publication until conclusion of trial Judgment 1. Yesterday, the Prosecutor sought leave under s 32 of the Evidence Act 1995 (NSW) to have the current witness, Ms Wai Li, refresh her memory from a police statement she made on 1 May 2019. Three of the six accused opposed the grant of leave. The evidence subject of the s 32 application concerns a "conversation" between Ms Li and one of the accused, Mr Luo, which was conducted over a medium known as WeChat the day after the alleged murder on 1 February 2017. That is, the alleged WeChat messages were sent and received on 2 February 2017, more than two years before Ms Li's statement was made. The evidence was considered in two separate judgments in the course of the pre-trial hearing: R v Al Batat & Ors (No 8) [2020] NSWSC 1095 and R v Al Batat & Ors (No 10) [2020] NSWSC 1107. In the first of those judgments I ruled the evidence was admissible against Mr Luo and in the second I ruled that it was inadmissible against Mr Liu. In accordance with those rulings, the evidence is only being elicited in Mr Luo's case. 2. The way in which the evidence came out, and the manner in which the application for leave was made and opposed, is recorded in yesterday's transcript: [1] "CROWN PROSECUTOR Q. After Ada had told you about the person who had been shot and killed in the house near Auburn, did you have any contact with the person Johnny? A. INTERPRETER: Yes. Q. How did you contact him? A. INTERPRETER: WeChat. Q. What did your WeChat message to him say? A. INTERPRETER: Asked if he knew about the event that occurred last night. Q. Did he reply? A. INTERPRETER: He said 'How could you know' or 'How did you know'. Q. Did you reply to that message? A. INTERPRETER: Yes, 'Ada told me'. Q. That was what you replied to him? A. INTERPRETER: Yes. Q. What was the next WeChat part of the conversation? A. INTERPRETER: He said 'Yes, it was Da Yu just on impulse'. Q. Was there more to that text exchange or WeChat exchange after that 'It was Da Yu just on impulse'? A. INTERPRETER: I said 'Why and it has nothing to do with the dead'. Q. Did you know then who the person who had been killed was? A. INTERPRETER: Yes. Q. Who was that? A. INTERPRETER: I call her Xiao Di. Q. Was it a male or a female? INTERPRETER: Sorry I withdraw. 'I call him Xiao Di'. CROWN PROSECUTOR Q. And Xiao Di is little brother? A. INTERPRETER: Little brother. HIS HONOUR: Are you moving on from that WeChat conversation? CROWN PROSECUTOR: I want to explore it a bit more. HIS HONOUR: This is evidence that you are tendering against Mr Luo? CROWN PROSECUTOR: Only against Mr Luo. HIS HONOUR: I think the jury should understand that at this stage. You can finish it off but I think they need a clear understanding that what Mr Luo might say is not admissible against the others and, in particular, when he says, 'Mr Liu shot him on impulse' or words to that effect, that that is not admissible against Mr Liu in this trial. CROWN PROSECUTOR: That's right, yes. HIS HONOUR: I will let you finish it off and I will try to give a more formal direction. CROWN PROSECUTOR: Thank you, your Honour. Q. The last part, Madam, that you have told us about was you sent a message that said 'Why, it has nothing to do with', and I'm sorry, Mr Interpreter, what was the last word that you used? I will have to do it through the witness. Can you tell us again what that message was, 'Why, and it has nothing to do with' ‑ what did you say? A. INTERPRETER: That dead person. Q. 'The dead person', yes, thank you. So after you sent that message, 'Why, it has nothing to do with the dead person', did Johnny reply? A. INTERPRETER: Yes. Q. What did Johnny reply? A. INTERPRETER: 'Shoot the wrong person'. Q. Other than 'Shoot the wrong person', did Johnny say anything else in those WeChat messages? A. INTERPRETER: No. CROWN PROSECUTOR: I have an application under s 32, firstly, of the Evidence Act. HIS HONOUR: Can that be dealt with in the presence of the jury. It is an application to refresh? CROWN PROSECUTOR: Yes. HIS HONOUR: Does anyone have an objection to that at this stage or do you need us to ventilate it in the absence of the jury? ALL COUNSEL INDICATED NO HIS HONOUR: Is everybody in agreement? There is no objection to refreshing the memory under s 32? QUILTER: Would your Honour pardon me? HIS HONOUR: Yes. QUILTER: I don't wish to be heard. CROWN PROSECUTOR: The only thing is that the statement was not made until May 2019. S 32 has‑‑ HIS HONOUR: The application is not opposed. If you want to talk me out of it. CROWN PROSECUTOR: I don't, your Honour, thank you. Q. If the witness could be shown this document (shown). WEBB: In my submission, in relation to the application, it ought to be pursued in the first instance by showing the witness the message, the actual message. HIS HONOUR: The WeChat message? WEBB: Yes, in my submission. HIS HONOUR: All right, well there might need to be some evidence about that, I suppose. Mr Prosecutor? CROWN PROSECUTOR: The application is for her to refresh her memory by reference to her statement. HIS HONOUR: Yes, I understand that. Mr Webb is now saying that maybe you should do it via the message. CROWN PROSECUTOR: I don't understand that I have the message, only her statement about the content. HIS HONOUR: All right. N CARROLL: There is something arising." 1. The jury was then sent home for the day and counsel for Mr Luo, that is, Mr Webb, indicated he opposed the grant of leave to refresh Ms Li's memory under s 32 of the Evidence Act. His opposition was supported by, at least, Senior Counsel for Mr Al Batat (Ms Rigg SC) and counsel for Mr Liu (Ms Carroll). The evidence is only tendered against Mr Luo but the other accused have a legitimate interest in the application because, as was submitted by Ms Rigg, the evidence may potentially go to, or at least be used as, evidence concerning the issue of any common purpose or criminal agreement between the men. The prosecution opened the trial on the basis of both joint criminal enterprise and extended joint criminal enterprise. Mr Liu has a particular interest because he is concerned that evidence prejudicial to him may emerge when that evidence is not admissible in his case. 2. Section 32 requires, in essence, that the witness's memory is exhausted, although the section uses different terms, as set out below. I doubt that the evidence that preceded the application truly engaged the prerequisite in s 32(2)(a) but, for the purpose of the argument, I am prepared to accept that it does. This decision is not based upon any deficiency in that regard. 3. The statement of 1 May 2019 deals with the alleged WeChat conversation on 2 February 2017 in paragraph 99 of 104. That paragraph reads as follows: "After I spoke to Daniel on the phone, I sent a message to Johnny on WeChat and asked him what happened last night, as the person who got killed had nothing to do with the dispute involving Ada. At first Johnny sent a message saying 'ummm?' and pretended like he didn't know. I sent another message to Johnny saying 'it's impossible you don't know I have been told by others'. Johnny then sent me a message saying words to the effect of '[Da Yu] he's sick, he took out the gun and shot within minutes after they started to talk. He was going to kill Xiao Jun, but he killed the deceased (I don't know the name Johnny used for the deceased) by mistake'…" 1. The matter raised by Ms Carroll in the absence of the jury, and implicitly by Mr Webb before the jury was sent out, is that the police and prosecution have access to the relevant WeChat conversation because they have (or had) possession of Ms Li's telephone. The Prosecutor says he understands that he does not have access to the relevant record. There is no evidence either way as to this issue and I will put it to one side. The application is to refresh the memory from the statement of 1 May 2019 and that application must be dealt with on its own merits. Obviously, if the WeChat message is actually available, it is the best evidence of the conversation. Otherwise the Court is left to rely on Ms Li's memory of what was said in the "chat". 2. Section 32 of the Evidence Act provides: 32 Attempts to revive memory in court (1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave. (2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account-- (a) whether the witness will be able to recall the fact or opinion adequately without using the document, and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that-- (i) was written or made by the witness when the events recorded in it were fresh in his or her memory, or (ii) was, at such a time, found by the witness to be accurate. (3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion. (4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party. 1. Section 192 of the Evidence Act provides some criteria to be considered in determining whether to grant leave. 2. Neither s 192 nor s 32(2) provides an exhaustive list of criteria upon which the decision as to whether leave should be granted must be determined. Section 32 reflects the common law position but the ALRC intended that the provision should create greater "flexibility": Stephen Odgers, 'Uniform Evidence Law' (15th Edition, Lawbook Co, 2020), p 175 [EA.32.60]. The statute places less importance on the contemporaneity of the document sought to be used to refresh the witness's memory but that requirement remains an important part of the evaluation of whether leave should be granted. 3. The phrase "fresh in the memory" has received a lot of attention both at common law and under the provisions of the Evidence Act: see for example R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105; Roth v The Queen [2014] VSCA 242; Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61. 4. Graham v The Queen was specifically concerned with the provision in s 66 of the Evidence Act which provides an exception to the hearsay rule. Gaudron, Gummow and Hayne JJ said of the expression "fresh in the memory": "[4] The word "fresh", in its context in s 66, means "recent" or "immediate". It may also carry with it a connotation that describes the quality of the memory (as being "not deteriorated or changed by lapse of time" but the core of the meaning intended, is to describe the temporal relationship between "the occurrence of the asserted fact" and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years. [5] There are several reasons for adopting this construction. First, the section applies only where the person who made the representation has been, or is to be, called to give evidence. To permit leading of evidence of out of court statements made by that person based upon some assessment of the vividness or quality of the recollection (as opposed to its being made very soon after the events) would be to distract attention from the quality of the evidence that the witness gives in court. Secondly, whatever a person may believe, and no matter how earnestly that person may try to be accurate, experience demonstrates that the memory of events does change as time passes. Thirdly, the exception created by s 66 should be limited in its application to those cases where the tender of the earlier statement is likely to add to the useful material before the court. If a witness claims to have a vivid recollection of events when called to give evidence, permitting the tender of some earlier statement made well after the events (but while they were, in the view of the witness or the court, still vivid) adds little useful to the material before the court. By contrast, to permit the tender of a statement made at the time of (or very soon after) events in question may well be useful. Such a statement may give the best available account of what the witness knows of the events." (Footnotes omitted.) 1. Section 66 was amended to overcome those observations. Section 66(2A) now provides: (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including: (a) the nature of the event concerned; and (b) the age and health of the person; and (c) the period of time between the occurrence of the asserted fact and the making of the representation. Note: Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606. 1. No similar amendment was made to s 32 of the Evidence Act. 2. The Prosecutor submitted that the phrase should be interpreted consistently whenever it is used in the Evidence Act. While that submission reflects a well-established axiom of statutory construction, it cannot sensibly be applied when one section has been amended to give the word or phrase a particular connotation or meaning and the other section has not. 3. The Prosecutor submitted that the nature of the communication was such that the memory of the conversation was fresh at the time of the statement. This was based on the importance of the communication – that is, a communication that somebody had been shot and killed. However, the witness was not recalling her own memory of the incident but rather one of a number of communications she had that morning over a messaging service. It is not known just how many messages she had sent or received that day or how many conversations, communications and "WeChats" she had been involved in during the 27 months between the alleged conversation and the making of her statement. 4. The event, being a WeChat message exchange, was not fresh in Ms Li's memory when she made her statement of 1 May 2019. It was far from it. 5. The Prosecutor relies on the fact that Ms Li signed her statement as true and correct and refers to s 32(2)(b)(ii) of the Evidence Act; that is, it is submitted the documents was "found by the witness to be accurate" (presumably) when she signed it. That is a relevant consideration but it is not one of very much weight in all of the circumstances of this case. The jurat in paragraph 1 of the statement is part of every statement taken by New South Wales Police. It is also to be noted that this was an induced statement, given upon a promise made to Ms Li that its contents would not be used against her. 6. In terms of s 192, the following matters are relevant to the question of whether leave should be granted: 1. The granting of leave would not unduly add to the length of the trial, although the way the evidence is being elicited to this point suggests it would certainly add some length with little countervailing benefit in terms of discovering the truth or achieving justice. 2. There is a risk of unfairness to Mr Liu should the evidence emerge as it was put in the statement. He was described as "sick" and motives and intentions were attributed to him that are not admissible against him. Directions may cure the problem but the more stark the evidence, the greater the risk that the jury will have difficulties in putting the evidence aside in Mr Liu's case. There is also a risk of unfairness to the other accused in that the jury may use the evidence in determining the nature of the common purpose (if any) between them. 3. The evidence is somewhat important. However, many of the salient admissions have already been elicited in the evidence adduced to this point. In particular, the jury is entitled to consider that the evidence, if accepted, establishes an admission by Mr Luo that he was present at the scene and that, from his point of view, the wrong person was shot. It is true that the target of the shooting, said to be Jun Jia, was named in the statement but has not been named in the evidence. That detail, while important, is not crucial and putting the statement in the witness's hands in the witness box is unlikely to enhance her true memory of the exchange she says she had with Mr Luo on 2 February 2017. 4. It is a murder case. It is important that the prosecution be permitted to present all of the admissible evidence available to it. 1. I have considered all of these matters. However, the heart of the issue, to my mind, is whether allowing Ms Li to refer to her statement while she is in the witness box will genuinely or actually assist her in providing a true and accurate memory of the content of the relevant WeChat messages. I don't think that it will. Ms Li's statement of 1 May 2019 provided what was accurately described by Ms Rigg as an "impressionistic" memory of the WeChat conversation. There is simply no way that her memory at that time allows for a perfect reproduction of the words actually used 27 months earlier on 2 February 2017. 2. Accordingly, the application under s 32 of the Evidence Act 1995 (NSW) is refused. 3. Nothing in this judgment or in this ruling, will prevent the Prosecutor from exploring the WeChat conversation further in evidence-in-chief but he will not be permitted the put the statement in the witness's hands for the purpose of purporting to refresh her memory. Nor will he be permitted to cross-examine the witness in the absence of leave being granted under s 38 of the Evidence Act. ********** 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