Supreme Court New South Wales Medium Neutral Citation: R v Al Batat & Ors (No 26) [2020] NSWSC 1389 Hearing dates: 2 October 2020 Date of orders: 2 October 2020 Decision date: 13 October 2020 Jurisdiction: Common Law Before: Hamill J Decision: (1) The text message of 31 January 2017 is admissible. (2) The opinion evidence of Detective Inspector Bamford is not admissible. Catchwords: CRIMINAL LAW – evidence - opinion evidence - police officer expressing opinion as to meaning of text message sent by accused - whether reference to "toys" was a reference to firearms - matter for jury not expert evidence - opinion not based on police officer's expertise Legislation Cited: Evidence Act 1995 (NSW), s 79 Cases Cited: R v Al Batat & Ors (No 3) [2020] NSWSC 1061 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. This judgment relates to the admissibility of evidence of, and relating to, a text message sent by the accused Mr Bayliss to a person referred to as "Slug" on 31 January 2017. The text message is in the following terms: "[BAYLISS] Im pikn up toy from stash so cnt take her bak in 5mins bro…soz bout this" 1. The prosecution case is that the reference to "toy" in this text message is a reference to a firearm. It seeks to call "expert" evidence to establish that the text message is a coded conversation. A police officer, who has experience working in investigations relating to firearms, is prepared to give evidence to the effect that the author "is picking up a firearm" and that "the author is indicating they have more than one as it is being collected from a stash referring to a collective". 2. This text message was the subject of an earlier judgment in R v Al Batat & Ors (No 3) [2020] NSWSC 1061. At that stage the evidence of the text message itself was subject to objection on the basis that there was no evidence capable of supporting the inference that the reference to a "toy" was a reference to a firearm. At [55(11)] of that judgment I said: "The Prosecution seeks to submit that the reference to 'toy' is a reference to a gun. Mr Norrie submits this is entirely speculative. However, the Prosecutor anticipates there will be evidence from one or more police officers that the word 'toy' is sometimes used to refer to firearms. In the absence of such evidence, I do not accept the Prosecutor's submission that the text message would be admissible based on a 'sort of ad hoc code [that] can generate so spontaneously'. Assuming there is such foundational evidence, and given the timing of the message (the day before the alleged gun supply), the evidence is relevant and admissible." 1. Following that judgment, the prosecution served a statement of Detective Inspector John Bamford dated 23 September 2020 (Exhibit VDX). Mr Bamford set out his experience as a police officer and his knowledge, based on that experience, of firearms. As the Prosecutor conceded in argument, much of that evidence and expertise was irrelevant to the question of whether the witness was qualified to provide an opinion on what the text message of 31 January 2017 meant. Even so, the Prosecutor pressed the evidence, largely on the basis of what I had said in [55(11)] of the earlier judgment. 2. Counsel for Mr Bayliss objected to the evidence. He provided helpful written submissions. [1] It was submitted that (1) the proposed opinions were not areas of specialised knowledge and (2) the opinions were not based on any area of expertise said to be possessed by the expert. Those submissions were correct. 3. However, in the course of argument, Mr Norrie effectively conceded that the text message itself was admissible. [2] In spite of the contents of [55(11)] of my earlier judgment, I indicated a tentative view that the text message was admissible but the expert opinion was not. Neither counsel sought to be heard further. 4. I reached the view that the text message, given its timing and context, was capable of being used by the jury as part of a circumstantial case against Mr Bayliss on the allegation that, the day after the message was sent, he supplied guns to Messrs Liu, Mr Luo and/or Mr Fan. Given appropriate warnings about circumstantial evidence, the jury may draw rational inferences from the whole of the evidence - including the timing and content of the text message - without engaging in speculation. I also reached the view that this was a matter to be assessed by the tribunal of fact, that is, the jury, and that the expert opinion was not admissible for the reasons advanced by counsel for Mr Bayliss. Section 79(1) of the Evidence Act provides an exception to the general rule that opinion evidence is inadmissible: Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 1. Detective Bamford's opinions as to the meaning of the text message were not based on his own expertise and specialised knowledge. Rather, it is his opinion based on the drawing of inferences that the jury is capable of drawing, or declining to draw, for itself. 2. It was for those reasons that I ruled: 1. The text message of 31 January 2017 is admissible. 2. The opinion evidence of Detective Inspector Bamford is not admissible. ********** Endnotes 1. MFI VD66. 2. Transcript (T), 02/10/2020, p 1327. 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