Supreme Court New South Wales Medium Neutral Citation: R v Al Batat & Ors (No 23) [2020] NSWSC 1370 Hearing dates: 7 October 2020 Date of orders: 8 October 2020 Decision date: 08 October 2020 Jurisdiction: Common Law Before: Hamill J Decision: (1) The evidence in paragraph 29 of the statement of Ms Hsu is admissible. Catchwords: CRIMINAL LAW - evidence - admission - where police inform witness what they thought happened after the witness made a statement - concern that knowledge may increase her level of confidence under cross-examination - unfair prejudice - probative value - evidence that accused aware of drug debt - drug debt part of motive for killing - where drug debt disputed - probative value high - prejudice incalculable - evidence admissible Legislation Cited: Evidence Act NSW (1995), s 137 Cases Cited: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Dickman (2017) 261 CLR 691; [2017] HCA 24 R v Yassar Bakir [2009] NSWDC 12 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, counsel for Mr Fan (that is, Mr Quilter) raised an objection to evidence that the parties anticipate will be given today (Thursday, 8 October 2020) by a witness, Yi-Chieh ("Maggie") Hsu. The evidence is contained in the witness's statement of 12 September 2017 (Exhibit VD18) at paragraph 29: "I remember Michael telling me that a person called 'Little Jun' owed a lot of people money and that he robbed other people of their drugs. I think this was shortly after I first met Michael. Michael also told me that a lot of people were looking for 'Little Jun' and when they found him, they lost more money. Michael didn't explain to me how they lost more money." 1. Earlier in the statement Ms Hsu says she met Mr Fan on 11 October 2016. 2. The evidence is relevant because the prosecution case is that the attempt to murder Jun Jia (or "Little Jun") was motivated by the fact that he owed some gangsters money for drugs with which they had supplied him. Those gangsters allegedly took out a contract on his life as a result and Mr Fan was recruited by a co-accused, Mr Luo, who the prosecution says accepted the contract. Mr Jia gave evidence of the drug debt and he was cross-examined by some of the accused to the effect that there was no such debt. The existence of the debt and the contract are significant and disputed issues in the trial. 3. The objection is based on material contained in an investigator's note created on 20 July 2018. That note states that Detectives Chivers and Roberts attended on the witness on the same day, that is, 20 July. The note details some of the things the witness told police but also contains the following: "- Maggie was told that Police believe Jackie had paid Michael to have Jun Jia killed after he stole drugs from her - Maggie denied having heard this before but did not seem surprised or shocked" 1. It was submitted: [1] "QUILTER: … So, [paragraph] 29 is objected to on the basis of s 137 of the Evidence Act. It arises in circumstances that result from the investigator's note, which I take your Honour to now. This is a situation where Detectives Roberts and Chivers attended Ms Hsu's house on 20 July 2018. So that's roughly 10 months after she made the statement I've just taken your Honour to. Your Honour will see there is a summary of the conversation in that document and the fourth dot point in that summary reads as follows: 'Maggie was told the police believe Jackie had paid Michael to have Jun Jia killed after he stole drugs from her.' What that shows is the police, 10 months after the making of the statement, have approached the witness and expressed their belief about the entire situation. The reason that paragraph 29 is objected to is that were it not for the intervention of the police, Ms Hsu would have been cross-examined about paragraph 29 and there would have been cross-examination about her capacity to recollect the conversation she is speaking about. In particular, cross examination about the timing of the conversation. As your Honour would have noted, she says the conversation with Michael happened-- HIS HONOUR: Shortly after they met. QUILTER: Being 11 October 2016. The difficulty that I have in cross-examining Ms Hsu is that because she has been told what she has been told by the police in the extract that I just took your Honour to, any lack of confidence or lack of certainty that she may have had about the conversation with Mr Fan, may have dissipated as a result of what the police have said to her. In other words, she might express to the jury a confidence that only exists because of the police intervention on 20 July 2018. So the unfair prejudice in s 137 is a danger that the jury would give the evidence more weight than it truly deserves. That really arises in two respects. First, there is the fact that the witness may present more confidently than she would have, were it not for police intervention; but, secondly, it is not realistic for me to cross-examine Ms Hsu about this incident with the police on 20 July because it would cause me to reveal what the police said to her, which is obviously unfairly prejudicial to Mr Fan. It is inadmissible opinion evidence and it is an opinion that does not conform with the Crown case against Mr Fan. So that's the unfair prejudice. As to the probative value, this is not, in my submission, evidence that should be assigned a high probative value. At its highest, it is capable of proving that Mr Fan had some knowledge of Mr Jia's activities. That is really the height of the probative value of the evidence. The timing of it, it would seem that the Crown will not urge the jury to accept that it was said around October 2016, so the timing of it will be, no doubt, the subject of contested evidence during the trial. HIS HONOUR: Shortly after they met, if they met October 16th, that could be around the time of the events. QUILTER: It could be. So, that is the identification of the probative value and the unfair prejudice. In my submission, the unfair prejudice does [outweigh] the probative value." 1. Counsel relied on a case called R v Yassar Bakir [2009] NSWDC 12. In that case a witness had participated and selected two photographs she said "may be" the perpetrator of a shooting offence. At committal proceedings, the Prosecutor told the witness that one of the photographs she selected was "not a suspect". The witness "understood that what she was being told was that she had made a mistake regarding her identification of the person [in the second photograph]". The witness then gave evidence identifying the person in the other photograph as the perpetrator. That person was the accused. In the course of her committal evidence the witness lied about the conversation with the Prosecutor. Berman SC DCJ excluded the evidence of the identification of the other photograph. His Honour held that the Prosecutor's conduct was the "most likely explanation for what I accept is a change in the level of certainty given by Mrs Moore to her identification of the [accused]". His Honour found that "to say to [the witness] 'you got number 16 wrong' tells her that she got number 7 'right'." 2. Judge Berman formed the view that the probative value of the evidence was "low". This was the result of many factors some of which were fairly typical in cases of identification evidence while others were specific to the case. The latter included the impact of the Prosecutor's conduct on the witness's evidence and the witness's credibility. [2] Judge Berman analysed the prejudice at [30]-[34]. His Honour said at [33]: "…Her evidence regarding her present state of mind has been tainted. It is no longer possible for her to forget what she has been told with the result that she will present to the jury as being a witness who is certain that she accurately picked out photo number 7 as being on of the men she saw on 15 November 2007. In truth, as I have found, that certainty is unwarranted and it is misleading for her to be presented to the jury as a witness who honestly believes that she has no doubts about her reliability." 1. I accept Mr Quilter's submission that similar considerations arise here although the circumstances are very different. In the present case the extent to which the witness's confidence will be enhanced (if any) is not known. It is to be remembered that it is now over two years since the police made the unfortunate decision to share their case theory with Ms Hsu. Whether she even remembers what was said in that conversation is not known. The extent to which it may increase the confidence with which she gives evidence is incapable of calculation. 2. My assessment is that the evidence has a relatively high degree of probative value. It has been put to Mr Jia, earlier in the trial, that there was no drug debt. Counsel for Mr Fan conceded there was no admission by Mr Fan that there was such a debt. [3] In view of the prosecution case theory, it is an important part of the circumstantial case. If Ms Hsu's account of the conversation with Mr Fan is accepted, the evidence is capable of affecting the jury's assessment of a significant fact in issue – albeit that it is "not an admission that there was, in fact, a drug debt" but rather "an admission that Mr Fan had knowledge that there was a drug debt". [4] In assessing the probative value, I am conscious of the fact that the precise date of the conversation between Ms Hsu and Mr Fan is not clear and that the conversation is not directly related to the drug deal about which Mr Jia gave evidence or the debt allegedly owed to the person known as "James". 3. On the other hand the danger of unfair prejudice is difficult to assess because, unlike the case of Bakir, the impact of the police officer's words on the witness is not known. I do accept that counsel is placed in a difficult position and that it is no answer to say, as the Prosecutor said, that the police conduct could be elicited and the jury instructed to disregard their theory of the case. 4. Even so, I am satisfied that the probative value of the evidence outweighs the danger of unfair prejudice or, put the other way, I am not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice: see s 137 of the Evidence Act 1995 (NSW). 5. Accordingly, the evidence in paragraph 29 of the statement of Ms Hsu is admissible. ********** Endnotes 1. Transcript (T), 07/10/2020, pp 1497-1499. 2. But quare the relevance of the credibility of the witness in the light of the statements of the High Court in cases such as IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [52] (per French CJ, Kiefel, Bell and Keane JJ) and R v Dickman (2017) 261 CLR 691; [2017] HCA 24 at [43] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ). 3. T, 07/10/2020, p 1503. 4. T, 07/10/2020, p 1504. 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