Supreme Court New South Wales Medium Neutral Citation: R v Al Batat & Ors (No 18) [2020] NSWSC 1259 Hearing dates: 15 September 2020 Date of orders: 16 September 2020 Decision date: 16 September 2020 Jurisdiction: Common Law Before: Hamill J Decision: The evidence is admissible in Mr Liu's case but its use will be limited pursuant to s 136 of the Evidence Act 1995 (NSW). Catchwords: CRIMINAL LAW - evidence - hearsay evidence - whether admission made with authority - co-conspirators rule - section 87 - previous ruling on same evidence in co-accused case - murder - joint criminal enterprise - where co-accused asserts accused was the shooter - shot the wrong guy - where three accused re-enter the premises - whether merely narrative of past events - whether in furtherance of common purpose - objection not taken in 5 week pre-trial hearing - where co-accused made timely and well-articulated objection - accused liable on two legal bases - joint criminal enterprise - principle in the first degree - evidence admissible to prove existence nature and scope of alleged criminal enterprise - evidence not admissible in direct liability case to prove accused the shooter Legislation Cited: Evidence Act 1995, ss 87, 90, 136 Cases Cited: Ahern v the Queen (1998) 165 CLR 87; [1988] HCA 39 Landini v New South Wales [2007] NSWSC 259 R v Al Batat & Ors (No 1) [2020] NSWSC 967 R v Al Batat & Ors (No 9) [2020] NSWSC 1101 R v Al Batat & Ors (No 10) [2020] NSWSC 1107 R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 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 EX TEMPORE Judgment (Revised) 1. Yesterday, at the conclusion of the first full day of the evidence of Leonard Rivers, objection was taken on behalf of Mr Liu (also known as "Corey") to evidence of words uttered by Mr Luo (or "Johnny") after the shooting that gives rise to the charge of murder against four of the accused men and before the men had left the scene. Mr Rivers' evidence is that he was waiting in a car outside or nearby when Messrs Luo, Liu and Fan went into the premises and the shooting occurred. The prosecution case is that the accused were part of a joint criminal enterprise to kill a man named Jun Jia and that this was the second attempt on his life. Things went wrong and the wrong man – a Mr Qin Wu – was shot and killed. The prosecution case is that Mr Wu sustained the fatal gunshot when Mr Liu discharged a firearm. 2. The relevant part of Mr Rivers' evidence concerned him waiting outside when the others went into the house. He said he saw Mr Luo arriving and his evidence continued: "Q. You told us you saw Johnny, did you see anyone else? A. Yes. Q. Who else did you see? A. I saw Michael and Corey. Q. What were they doing? A. They were walking behind him. Q. When Johnny came back to the car, what did he do? A. He got into the car and he said "Did you hear the shots?" Q. What did you say? A. I said "No, I didn't". Q. Did you say anything else? A. I said "What happened?" Q. What did he say? A. He said "Corey missed him, he shot the wrong guy". N CARROLL: Objection." 1. The transcript records the objection occurring after the evidence was given but my perception was that the objection and the evidence were more or less simultaneous. The evidence was given as, or just before, the objection was taken by counsel for Mr Liu. The evidence could not have come as a surprise because Mr Rivers' statement dated 8 February 2018 recorded the conversation in paragraph [128]. The relevant part of the conversation was recorded as: "No, Corey missed he got someone else". 1. Based on his statement, at [131]-[132], it is anticipated Mr Rivers will say that after this conversation he and Mr Luo drove off with Michael and Corey (that is, Mr Fan and Mr Liu) following in a different car. The two cars drove past the house and Mr Luo told him the man they were after had run into a back room of the house. Mr Luo said they were going back in. A further statement dated 3 May 2018 continues the narrative and describes the three accused heading back into the house. The prosecution case is that Mr Jun Jia had fled the scene by the time the accused returned to the house. 2. No objection was taken to this evidence by Mr Liu in the course of a lengthy pre-trial hearing in spite of the fact that he objected to somewhat similar evidence given by a different witness in relation to a conversation with Mr Luo the following day: see R v Al Batat & Ors (No 10) [2020] NSWSC 1107. The absence of an earlier objection on behalf of Mr Liu is perplexing in light of the fact that counsel for Mr Fan took objection to the very same evidence in the course of the pre-trial hearing: see R v Al Batat & Ors (No 9) [2020] NSWSC 1101 at [25], [60](2), [61](2); see also the pre-trial transcript at 06/08/2020, pp 353-356 and MFI 33 (Mr Fan's written submissions on the issue). When asked whether Mr Fan had objected to the same evidence in the course of the pre-trial hearing, counsel for Mr Liu replied "He may have". [1] The absence of a timely objection is unfortunate and frustrating, and has disrupted the proceedings, but, at this point, it is irrelevant. To minimise inconvenience and disruption to the jury, it is necessary to resolve the issue expeditiously. 3. For the reasons given in R v Al Batat & Ors (No 9) the evidence is admissible against Mr Liu (just as it is against Mr Fan) to prove the existence, nature and scope of the joint criminal enterprise. That is, the evidence is admissible to prove that the accused men went to the premises in pursuance of a joint criminal enterprise to shoot and kill Jun Jia. It is admissible against each of the men charged with murder on that basis and for that purpose. See, for example, Ahern v the Queen (1998) 165 CLR 87; [1988] HCA 39 at [17] and the cases and legislation referred to in R v Al Batat & Ors (No 9). On the prosecution case, Mr Luo's utterance was made in the course of the attempt to carry out the alleged joint criminal enterprise to kill Jun Jia. It was made after Mr Wu was shot but before Messrs Luo, Liu and Fan re-entered the premises. The words were uttered by a person (Mr Luo) who shared a common purpose with Mr Liu and in furtherance of that common purpose. Mr Rivers' precise function in waiting in the car is not completely clear but he was aware of the murder plot, travelled to the scene with Mr Luo and Mr Liu and was waiting in the car very close to the house at which the shooting took place. The prosecution case against each of the men is based on a joint criminal enterprise so that the common law co-conspirator's rule and provision in s 87 of the Evidence Act 1995 (NSW) are engaged. In essence, this was the basis of the decision to allow the evidence over Mr Fan's timely and well-articulated objection dealt with in the pre-trial hearing. 4. However, Mr Liu is in a different position to Mr Fan because the prosecution alleges that it was Mr Liu who actually shot Mr Wu. The case against Mr Fan can only be established on the basis of the alleged joint criminal enterprise. In contrast, the case against Mr Liu might be established by his participation in the joint criminal enterprise, but it could also be proved on the basis of direct criminal liability. That is, the prosecution is entitled to go to the jury on the basis that Mr Liu caused Mr Wu's death by his deliberate act of discharging the weapon with an intention to kill or inflict grievous bodily harm. This direct liability case – or, using different language, the case that Mr Liu is the principal in the first degree – means that the evidence of Mr Luo's utterance to Mr Rivers has, potentially at least, a different legal complexion. In determining its admissibility, different considerations apply. 5. The co-conspirator's rule and the provision in s 87 of the Evidence Act attributing the actions (or admissions) of one co-accused to another applies in cases based on a common purpose including, but not limited to, conspiracy cases. It applies in this case insofar as the prosecution relies on the concept of joint criminal enterprise. The exception to the hearsay rule in s 87, and the attribution of responsibility for the conduct of one accused to another explained in cases such as Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22, Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39, Landini v New South Wales [2007] NSWSC 259 and R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 have no part to play in a case based on direct criminal responsibility. 6. Admitted without limitation and clear direction concerning its use, Mr Luo's alleged utterance that "Corey shot the wrong guy" could potentially be used by the jury to reach a conclusion, consistent with the prosecution case theory, that Mr Liu was the shooter and that he discharged the firearm deliberately and with a murderous intention. Even if the jury rejected the prosecution case (or had a reasonable doubt) about the alleged joint criminal enterprise, it might convict Mr Liu on the direct liability case on the basis of evidence that Mr Liu is in no position to challenge. He was not present when the words were allegedly uttered so he cannot challenge Mr Rivers' account as to what Mr Luo said when he got back to the car. More fundamentally, Mr Liu cannot challenge Mr Luo who is the person who is alleged to have made the allegation against him. That position may change if Mr Luo gives evidence in the trial but he is not obliged to do so and whether he will cannot be known at this point in the proceedings. 7. Even if the evidence is admissible under s 87 on the direct liability case against Mr Liu, which I very much doubt, the use of the evidence as an admission made with authority to prove he was the shooter, that he acted deliberately or that he acted with any particular intention, is unfair for the purpose of s 90 of the Evidence Act. It is an unusual engagement of s 90 but the circumstances themselves are unusual. That is, it is unusual for the evidence to be tendered under s 87 (or the co-conspirator's rule) in a case based on a joint criminal enterprise when the prosecution might also put a case against Mr Liu based on his direct liability as the alleged shooter. 8. While the evidence is admissible in the case against Mr Liu, its use must be limited to guard against potential misuse by the jury and unfairness in Mr Liu's trial. It will be admitted to establish the existence, nature and scope of the joint criminal enterprise but not to prove that he fired the gun or his intention in doing so. 9. While cases like Ahern v The Queen allow such evidence to be used to prove the co-accused's participation in the offence, the circumstances of Mr Liu's case are such that the jury should not be permitted to use the evidence in that way. It would not be possible for the jury to disentangle the use of the evidence to establish Mr Liu's participation in the joint criminal enterprise (namely and amongst other things by firing the weapon) while being directed that the evidence cannot be used in the direct liability case to establish that he did that same act. 10. Accordingly, I rule that the evidence is admissible in Mr Liu's case but its use will be limited pursuant to s 136 of the Evidence Act 1995 (NSW). The jury will be directed that: 1. The evidence can only be used against Mr Liu to establish the existence of the joint criminal enterprise alleged by the Prosecution and the nature and scope of that enterprise. 2. The evidence cannot be used to establish that Mr Liu discharged the firearm or that he did so deliberately or with intention to shoot or kill a different person (namely Jun Jia). 1. Because the objection came so late that the witness (who appears remotely [2] and may not be able to hear or see when an objection is taken) had already given the evidence I propose to direct the jury on the issue as soon as it returns to the courtroom and before the evidence resumes. Post script: Direction to the jury immediately upon resumption 1. Once the above judgment was delivered, and rulings made, in the absence of the jury, the trial resumed and the following direction was provided to the jury: "IN THE PRESENCE OF THE JURY … HIS HONOUR: Thanks. Members of the jury, the last thing that happened yesterday, you will remember was that Mr Rivers was giving evidence and an objection was taken by Ms Carroll, who appears for Mr Liu. I will remind you of the evidence. Mr Rivers was saying that he was sitting in the car around the corner from the house in Kennedy Street at Guildford. And then this evidence came out: 'Q. You told us that you saw Johnny, did you see anyone else? A. Yes. Q. Who else did you see? A. I saw Michael and Corey. Q. What were they doing? A. They were walking behind him. Q. When Johnny came back to the car, what did he do? A. He got into the car and he said 'Did you hear the shots?' Q. What did you say? A. I said, 'No I didn't'. Q. Did you say anything else? A. I said 'What happened?' Q. What did he say? A. He said "Corey missed him, he shot the wrong guy".' That was the point at which Ms Carroll objected. And I think the objection and the answer came at almost exactly the same time. The transcript had recorded the answer and Ms Carroll's objection is following it but I think they came at the same time but it doesn't really matter. The objection was taken by Ms Carroll, who appears, as I say, for Mr Liu, just as or after those words 'Corey missed him, he shot the wrong guy' were said. I have determined that the evidence is admissible. There is an important direction, however, that I need to give you about the way you can use and can't use that evidence. As you know by now, the evidence of what Mr Luo says in the absence of other accused is hearsay evidence. Generally, such evidence is only admissible in the case of Mr Luo but there are exceptions to that general proposition. One of those exceptions arises in this case and in relation to this evidence. In this instance, the evidence of what Mr Luo said to Mr Rivers is admissible against the other accused men to prove the existence of the alleged joint criminal enterprise to shoot and kill Jun Jia. Whether you accept that beyond a reasonable doubt is another question altogether. However, the evidence is available for to you consider along with all of the other evidence in the individual cases of the accused men charged with murder. So that is except Mr Bayliss and Mr Li who are not charged with that murder. The evidence can also be used to establish the nature and scope of this alleged joint criminal enterprise. However, it cannot and must not be used against Mr Liu to prove that he discharged the weapon, that is fired the gun, or that he did so deliberately or that he did so with any particular intention. They are the things the prosecution has to prove against him. So I'm going to repeat that. The evidence of what Mr Luo said to Mr Rivers when he jumped into the car is admissible against all of the accused charged with murder, and shoot with intent to murder, however, it is only admissible to prove the existence and the nature and scope of the joint criminal enterprise alleged by the prosecution. It is not admissible to prove that Mr Liu fired the gun or that he did so deliberately or that he did so with any particular intention. Again, whether you accept that those words were even said will be one of the factual issues that you have to decide. This will depend on your assessment of the current witness, Leonard Rivers. At the end of the trial I will be giving you warnings and directions about his evidence. Because Mr Rivers is the kind of witness that the history of the law shows us can be unreliable. He is a person who, on his own admission, was criminally involved in these events and he is strongly motivated to give evidence favourable to the prosecution because he has had his charges and his sentence reduced because he promised to do so. So this is pretty dangerous evidence that you are hearing at the moment. You will also remember that the other accused were not present when these words were allegedly said by Mr Luo so it is difficult for them to challenge it. They don't know what, if anything, Mr Luo said. They don't know what, if anything, was motivating Mr Luo in saying it. So, just remember those things as the evidence unfolds. Also remember the limited use that this evidence has in the case against Mr Liu, Mr Fan and Mr Al Batat. Most importantly for now and in the light of the objection taken by Ms Carroll yesterday, the evidence cannot be used against Mr Liu to prove that he fired the gun or that he did so deliberately or that he did so with the intention alleged by the prosecution. If that's too much, I will be explaining it more later. If you have any questions, send a note and I will try to articulate it with more clarity, but you will get all of the legal directions at the end of the trial so don't worry if it all seems a bit overwhelming at the moment. Hopefully it doesn't." ********** Endnotes 1. Transcript ("T"), 16/09/2020, p 649 2. R v Al Batat & Ors (No 1) [2020] NSWSC 967 at [36]. 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